Facebook, Whose Support Made FOSTA Law, Now Sued For Facilitating Sex Trafficking Under FOSTA
from the like-we-couldn't-have-predicted-that dept
If you don’t remember, the momentum around FOSTA/SESTA was that it was going nowhere, until suddenly Facebook did an about face and abruptly (and strongly) supported the bill, leading Congress to incorrectly believe that the tech industry now supported the bill. Facebook’s Sheryl Sandberg, who became the public face of supporting the bill, insisted that there were no problems with the bill, that it wouldn’t create any real problems for internet companies, and that it would be useful in the fight against sex trafficking.
At the time, we pointed out that under the broad definitions in the law, it certainly appeared that Facebook was potentially violating the bill in multiple ways. Even if it turned out that courts rule that the vague language of FOSTA should be construed much more narrowly, the damage is already done, as some companies will have to battle the issue out in court.
And… perhaps not surprisingly… one of the first such cases has been brought against Facebook itself along with Backpage, Backpage’s execs and some local motels (hat tip to Eric Goldman). As you can see, it’s a “Jane Doe” lawsuit filed against Facebook in Harris County, Texas, and the core of the lawsuit is basically tying Facebook to Backpage:
Social Media companies, websites, and the hotel industry should never place their quest for profits above the public good. Human trafficking has hit epidemic proportions in our communities, and it has had a devastating effect on the victims and a crushing financial effect on our world. Driven by profit, social media giants like Facebook and sex brokers like Backpage have treated children as a commodity.
The participants in this venture of abuse share a value–profit. And the bottom line comes before all else–including the safety of children in our community. Facebook’s profic (sic) metric is “connections.” Backpage charged fees to broker sex. And hotels, like the one in this lawsuit, look the other way while children, like Jane Doe, are abused, exploited, and made available for sex acts to multiple perpetrators.
While pimps and sex buyers are sometimes criminally prosecuted, the social media companies, hotel industry, and Backpage have been able to escape taking responsibility for the harms and losses they cause these victims and our community. For years, businesses have been providing predators unrestricted means to prey on victims. Not anymore.
The specific issue relating to Facebook is that the plaintiff “Jane Doe” was recruited from Facebook, and that makes it vicariously liable under FOSTA.
The use of Facebook and the Backpage website for the advertising and recruitment of minors for sex was so pervasive and known to Facebook and the Backpage Defendants that it cannot be said such conduct was so unforeseen as to prevent Facebook and the Backpage Defendants from being liable for such conduct. Rather, Facebook and the Backpage Defendants knowingly aided and assisted sex traffickers, including the sex trafficker who recruited Jane Doe from Facebook and posted the advertisements of Jane Doe on the Backpage website. Facebook and the Backpage Defendants knowingly benefited from this illegal and immoral activity.
In a section about the “allegations regarding Facebook” the complaint makes Facebook out as if it were just as bad as Backpage. Here’s just a snippet:
With each passing day, the gateway to our community’s children is increasingly social media–and Facebook in particular.
People, including children, connecting with their friends, family, and communities are not the only ones passing through Facebook’s gateway.
For years now, Facebook has permitted sex traffickers unfiltered access to the most vulnerable members of our society.
It has continually been used to facilitate human trafficking by allowing sex traffickers an unrestricted platform to stalk, exploit, recruit, groom, recruit, and extort children into the sex trade.
And, yes, it says “recruit” twice in there. This is, of course, hogwash. Facebook connects people, but it gives those users a tremendous amount of control over who is able to contact them — meaning it is hardly “unrestricted.” Either way, because of actions of someone else on Facebook, Facebook should be held liable according to this lawsuit:
The Facebook Friend said Jane Doe could make enough money to pay the rent on her own apartment. The Facebook fried offered to pick her up and console her about her disagreement with her mother.
Within hours of meeting the Facebook Friend, photos were taken of Jane Doe and were posted on Backpage, and then was raped, beaten, and forced into further sex trafficking.
Jane Doe had never been made aware of the dangers of sex traffickers on Facebook.
Jane Doe had never been made aware of the warning signs of sex traffickers on Facebook.
During the whole time that Jane Doe’s Facebook Friend used Facebook, Facebook took no steps to verify his identity.
To date, Facebook has taken no reasonable steps to mitigate the use of Facebook by sex traffickers or exploiters using its platform.
Millions of minors like Jane Doe remain at risk every day when they simply log onto Facebook.
So… given those details, it certainly seems like there’s an obvious criminal case to be brought against this “Facebook friend.” Shouldn’t that be the focus? Also, there are lots of places to learn how to be safe online. Why is it Facebook’s fault that this individual didn’t learn the basics of internet safety? The story is sad, obviously, but blaming Facebook for it is ridiculous. But thanks to Facebook’s own support of FOSTA, it’s at least now possible. In the causes of action, Doe claims that Facebook had a duty to “warn of the dangers of grooming” and failing to do that makes it liable. That seems like a stretch, but again, thanks to FOSTA it’s not an open and shut case like it would have been earlier.
Remember, back when some of us pointed out that under FOSTA almost any website might face crushing liability? But supporters of the bill insisted that was a ridiculous read on the bill, because it would only apply to “bad actors” who “knowingly facilitated sex trafficking.” We kept being told that this would never apply to sites like Facebook, and even had people tell us that Facebook’s own support of the bill somehow “proved” that the law would never be used against Facebook.
And, yet, here we are with Facebook in court, with a victim of sex trafficking claiming that Facebook is liable.
Facebook may get the case tossed — and hopefully that is the end result — but it has already created a legal headache for the company, just as many of us predicted back when the bill was being debated. Also, I can’t wait for all of those who insisted that FOSTA would never be used against sites like Facebook to either (a) refuse to comment on this or (b) now insist that Facebook was, indeed, a “bad actor” despite denying it during the debate over FOSTA and SESTA.
Filed Under: cda 230, fosta, intermediary liability, section 230, sex trafficking
Companies: backpage, facebook
Comments on “Facebook, Whose Support Made FOSTA Law, Now Sued For Facilitating Sex Trafficking Under FOSTA”
Backpage?
Backpage? Please say more about that; hasn’t it been shut down the entire time FOSTA’s been law? Are they being sued for something that was legal at the time?
Re: Backpage?
No, you missed the point of several pieces here in which Techdirt points out that Backpage was indicted under law prior to FOSTA. Techdirt’s use for that is to claim that FOSTA with more explicit provisions wasn’t needed, because Techdirt NEVER wants corporations to be held liable.
But thanks for showing your comprehension was lousy, and so Masnick is wasting his time.
Re: Re: Backpage?
You forgot to end your sentence.
“because Techdirt NEVER wants corporations to be held liable.”…for crimes some other third party commits.
Similarly, YOU never want ‘roads’ to be held liable…for bank robberies where the criminal used the road.
The real problem here is that Facebook has deep pockets, where the actual criminal probably doesn’t. In the US, accusations of guilt tend to follow the money, not the guilty.
Re: Backpage?
Also the activities on Facebook, that she complains of, took place before this law was passed. But why would she care when Facebook is about the only defendant that may actually be able to pay her damages.
Re: Re: Backpage?
Clearly the liberal’s "all women should be believed" line is now thrown aside until useful again.
Re: Re: Re:
For the record, the underlying ethos of #MeToo is not “all women should be believed” (and that includes the implicit “no matter what” that your phrasing implies). The proper phrasing would probably be along the lines of “take women’s accusations seriously”, because the implication with that phrasing is simple: “Trust, but verify.”
Yes, people make false accusations of sexual assault and rape. Yes, those false claims do damage to the credibility of actual survivors. But the fact that false accusations do get made is not reason enough to ignore or brush aside the real accusations. Law enforcement should assume that the person making those accusations has told the truth—but that only means they should investigate the accusations rather than putting the accused in jail and throwing away the key at the first possible chance.
(And by the by, I used non-gendered pronouns in that last paragraph for a reason: Male survivors of sexual assault often have their accusations taken less seriously than women, which means they should receive the same “trust but verify” treatment as women.)
Re: Re: Re:2 Re:
Confirmed correct. One of the most horrific stories I’ve ever read was about a male rape victim reporting his attack to his superior officer in the army. The officer replied to the bruised and bleeding victim, “Son, men don’t get raped. Now drop and gimme twenty.”
Re: Re: Backpage?
FOSTA can, in fact, be read to permit EX POST FACTO actions. It was a complaint brought up at the time, highlighting the poor drafting of the law.
Re: Re: Re: Backpage?
Re: Re: Re:2 Backpage?
Lucky for you, no one cares about the Constitution and there are several ex post facto laws on the books in practice, just disguised as not being ex post facto and many of them surround ex-cons and sex offenders.
Not to mention many of the unconstitutional laws and non-existent laws you can be arrested for as well.
Re: Re: Re:3 Backpage?
Despite the clear wording—"No Bill of Attainder or ex post facto Law shall be passed"—apparently courts only consider that to apply to criminal punishment. Retroactive tax laws are a thing, and being put on a sex offender list is "not punishment" (yeah right).
Live by the sword.
Die by the sword.
Not only do I hope this case isn’t tossed, but that Facebook gets slammed one of the largest fines in human history.
Because nothing says “poetic justice” given their stance on the ridiculous law.
“Serves them right” is a statement I will polish until it blinds viewers should the case proceed and Facebook loses.
Can you tell I hate Facebook?
Re: Re:
And if Facebook loses something might actually be done about FOSTA if it shows everyone how absurd it is.
Re: Re:
Your desire for Poetic Justice is well-deserved.
However, don’t become what you beheld. Facebook might be getting what they deserve, but by cheering this on, you would be cutting of your own nose despite your face.
If we cheer the bad lawsuits against Facebook, since they deserve it, next those lawsuits will go after Techdirt, or some other site you like, or you. Then THAT would be poetic justice.
Re: Re: Re:
Probably just a typo, but it’s "to spite".
Re: Re: Re: Re:
I like the use of despite instead, even if it is wrong.
Re: Re: Re:2 Re:
Same.
Re: Re: Re:2 Re:
Yeah, it has a completely different meaning, but “cut off your nose despite your face” would apply perfectly to cases like where a coach or manager gets fired when the problem is actually the crappy team hired by the front office. “Your face is really ugly and cutting off your nose didn’t really help.”
Re: Re: Re:
“However, don’t become what you beheld. Facebook might be getting what they deserve, but by cheering this on, you would be cutting of your own nose despite your face.”
My face? No, no, my fellow Techdirt reader. It’s your face that will see the punishment.
You see, I have this problem. There are millions of Americans who spend more time generating Facebook memes bitching about their government than actually doing something about them.
Years ago, I lead the charge against such stupidity. Yet, as I turned my head to the left and right, gone were those who stood beside me to fight. They went home, defeated.
Soon, I stood alone, before I too dropped my fight, defeated.
The reason we can’t “fight city hall” is because fucktards sit around and allow the idiotic government to pass laws like this in the first place.
So, when Facebook gets sued, and hopefully is forced offline, maybe then fucktards will start actually doing something besides making memes and control that stupid body residing in Washington DC.
Until then… I’m just mawing popcorn.
PS: “fucktards” because idiots cry like little girls when they see “retards”.
Re: Re: Re: Re:
You really think the problem is Facebook specifically? That if FB went offline, people who have no interest in politics would suddenly get involved rather than finding something else to do online?
Re: Re:
A win would be fine as long as it exposes some of the problems with FOSTA – I’m not a fan of Facebook, but I’d grudge them a victory* here (rather than indulging my thirst for schadenfreude) because they’re big enough to get the case coverage in the press and they’ve got a damn good team of lawyers who need to start putting a few holes in the very thing they previously supported.
* – As you mention, getting the case tossed doesn’t get us anywhere: no poetic justice from a loss, no headway against FOSTA from a win.
Because of course...
Of course they got sued.
The difference is, for them, the legal costs are a drop in the proverbial bucket, but for others, they can be business ending…
Which when you think about it, was probably Facebook’s main reason for supporting it.
Why get better, when you can get moronic officials to pass laws that kill competition and upstarts.
Facebook clearly was a bad actor in this, as were all the other parties who supported, enabled, or otherwise facilitated passage of FOSTA. They knew, or reasonably should have known, that broadly written laws will invariably be used in ways that the original supporters insist “would never happen.” Supporters may now claim that they couldn’t have known it would come back to bite them, but if they truly didn’t expect that could happen, then they are neither clever nor suspicious enough to be entrusted with lawmaking.
Re: Re:
Nah. It’s more that companies like Facebook think that there WILL be lawsuits, but that they are in a better position to defend themselves than other competitors or some startup that threatens them.
This is pure self-interest. Using the secondary consequences of laws and government to reduce your competition.
Last para conflates and confuses: "created a legal headache..."
I don’t know how you think that supports your credibility, when the charge I made was that, YES, Facebook was/is facilitating. It’s again your tactic of stating the bleedin’ obvious then simply gainsaying and concluding as if you’ve fully rebutted.
You blatantly try to limit discussion and rule out that obvious charge with:
More strawman ad hom against "those", accusing of cowardice, cynicism, and inability.
Pretty much all you wrote above is JUST TACTICAL, not substantive.
Now back up a bit to:
FLATLY WRONG.
A) You’re trying to claim that any suit whatsoever being brought is proof that you’re "right".
B) Tacitly stating your BIAS that no such suit could ever be valid.
C) Actual liability awaits test in court, just like any other case. We’ll see. You hedge, so without my even reading details, it’s probably a solid case.
D) It’s clear that you don’t want Facebook or other "internet corps" to EVER be held liable.
E) Mainly, the "almost any website" has not and will not happen: that was just your "chicken little" shrieking.
And the simple refuting of your notions is that Facebook likely was just doing PR because knew its liability. Under common law principles I add, since so many here, apparent foreigners like "Gary", don’t grasp that’s the foundation of the US Constitution. Anyhoo, evidently you believe that all favored corporations are entirely pure and good, NEVER even calculate. Sheesh.
Re:
Can you say "projection?"
Re: Re:
I’m not sure I would say that "common law" is the "foundation", but it’s true that some of the ideas espoused in the the Magna Carta are incorporated in our Constitution. Ideas like fair trials, habeas corpus, and an independent judiciary. One of the most influential ideas is "due process" which is addressed in the 5th and 14th Amendments.
I do find your comment to be hypocritical, Blue, since I’ve witnessed you strenuously cheering on the dismantling of Megaupload and the prosecution of Kim Dotcom with very little of what we now have come to consider as due process.
Your paradox absorbing crumple zones are simply amazing sometimes, Blue.
PS: You are still a big fat liar, in my book, since you can’t even man up to your own challenge and stop "darkening this site" like you said you would.
Re: Re: Re:
Under common law principles I add, since so many here, apparent foreigners like "Gary", don’t grasp that’s the foundation of the US Constitution.
Aw, thanks for bringing that up Blue.
You are just making up this "Common Law" jargon. And making up a super-fantastic interpretation of US law and how it doesn’t apply to you.
Re: Last para conflates and confuses: "created a legal headache..."
“Anyhoo,” “It’s clear that”you’re an ass.
Re: Last para conflates and confuses: "created a legal headache..."
Actual liability awaits test in court, just like any other case
That’s not what you said about Aereo.
ISP protection
It is my understanding that section 230 also protects ISPs. So now that FOSTA/SESTA specifically said providers are not protected by section 230 for sex trafficking, would that mean all ISPs can be held liable?
I can guarantee we can find evidence that the largest ISPs like Verizon, AT&T, Comcast, or Time Warner have all been informed their networks have been used for that purpose.
Re: ISP protection
Shhhhh we’re holding this for round 3….
Re: ISP protection
Even if stretched to technically true, not in the given case. ISPs are pretty nearly the neutral carriers that "platforms" are supposed to be, and have almost no view of the content. So rest of your comment is useless.
Re: Re: ISP protection
This was true, then the FCC chose to make IPSs not common carriers. Now an ISP is simply a middleman paid to connect your computer to other computers and any illegal data in transit is still illegal data.
The law is written that badly actully.
Re: Re: ISP protection
What part of FOSTA says that they aren’t liable if they have no view of the content?
Re: Re:
There once was an out of the blue
Who hated the process of due
Each post that he’d made
Was DMCAed
And shoved up his ass with a screw
Opportunity Knocks
With luck and careful case management this case will go to the Supreme Court and this awful law will be declared unconstitutional. Facebook will need to do so or it will face continuing liability far into the future.
Fortunately Facebook has the wherewithal to fund the whole process. Unfortunately, it won’t close Facebook down. I consider Facebook dangerous, but for reasons much different than expressed in this case.
The real question
What’s important here is did Facebook show her ads for apartments after the conversation? That would prove liability, they obviously were listening in and did nothing! Sarcasm aside, I actually expect to see something like this if this makes it to court. :/
comeuppance
So nice to see it happen, but FB has enough money to pay for this to go away in one form or another.
Typical proof of how people continue to solve problems in regressive and counter productive ways!
Up
…but FB has enough money to pay for this to go away in one form or another.
And this is the master plan – FG supported FOSTA. And they may get nicked here and there by it, but largely they can laugh it off.
Smaller companies, blogs, individuals – not so much.
Absurd..
Im waiting for this to backfire BIG TIME..
I see more complaints and statements then I see any Cause and affect..
With the idea that EVERYTHING can cause this to happen..Why arent the Hotels and motels in TEXAS lined up..
WHO taught this PERSON(jane doe) about Strangers?? This person as a Minor(????) had a friend on FB, that could drive a car and old enough to do WHAT??
Then Posted the pics on Backpage??? Back page SHUT DOWN before this law was relevant.. OR had any affect.
AND without FB and BP..you wouldnt know this even happened..IF this is true.
The claim that 1 person did WHAT to WHOM…is a very hard case..NOW you have pictures and Probably a location in where it occurred..AGAINST THE PERSON WHO DID IT..
Without FB and BP, you only had allegations..NOW you have a WHOLE LIST and its traceable… to the person(S) that did it..
Minors
There’s this:
> The Facebook Friend said Jane Doe could make enough money
> to pay the rent on her own apartment. The Facebook fried
> offered to pick her up and console her about her
> disagreement with her mother.
And then there’s this:
> Millions of minors like Jane Doe remain at risk every day
> when they simply log onto Facebook.
So what is a minor doing living in an apartment by herself? Seems like that’s more the problem here than Facebook allowing people to talk to each other.
Re: Minors
Maybe the mother and minor live in the same place and are having a hard time paying the rent.
Multiple interpretations are possible when so few words are used to describe the situation.
Re: Minors
I rather doubt the whole “get an apartment” aspect of the claim. I’m 53 and I bought a house when I moved because it’s too difficult to rent these days. Granted it’s been more than 20 years since the last time I looked at renting, but have you looked at what modern renters have to go through today?
Re: Re: Minors
“I rather doubt the whole “get an apartment” aspect of the claim. I’m 53 and I bought a house when I moved because it’s too difficult to rent these days.”
You seriously think it’s easier to buy than rent? Wow,just wow.
Re: Re: Re: Minors
I moved last xmas and I KNOW it’s FAR easier to buy than rent. Trying to rent was insane! Buying was simplicity itself.
Re: Minors
I read that as being "With this money, you could afford to move out and have your own apartment, instead of living at home with your parents." For some minors, the ability to leave home as soon as possible is a major draw.
Re: Minors
Love it..
Its been proven that the numbers suggested BEFORE the bill was passed…WERE STUPID..beyond exaggerated
After seeeing and adjusting the number it as found that 99% of it was Runaways that returned and no one fixed the paper work.. Family problems and so forth..
And less than, 500 per year..were never found..
I want to know Where they get MILLIONS..
I want to know WHO didnt teach their KID/TEENAGER…about strangers..
I want to know WHO is stupid enough to get in a car…With a stranger, PROBABLY MALE and OLDER then she is.. AND WHY IN HELL that person is on a friends list..
To many questions..
To many inconsistencies
To many exaggerations…
To much STUPIDITY”..
You live by the sword ,you die by the sword,
why did facebook support a broad bill thats so widely defined it could apply to any website that has
private messaging and allows millions of people to talk or even meet up in real life .
Any website that has millions of members will have some people that use it for dubious or even criminal
purpose,s .
The phone company is used by the public to
communicate ,with voice and txt message ,
the doj does not prosecute telecom providers
just because some of its users are gangsters ,
pimps, and drug dealers .
They go after the people who actually commit crimes .
They can get court orders to monitor criminals
and record their phone calls and their text messages .
Maybe facebook could put up a guide for new members
,basic internet safety .
is facebook going to be held responsible for everything that its members do,
if a married man has an affair with a young woman
he met online, is facebook responsible for this too.
Re: Re:
If you own a business where a few choose to hang out in the back parking lot where there is drug use and all sorts of lacivious behavior going on, you are going to be liable for those activities.
Children should have never been allowed to use cell phones with internet access in the first place. That in itself could spell the downfall of the world.
So this is an example of irony? Just want to be sure.
Re: Re:
Not sure if it’s irony so much as ‘be careful what you wish for’, though as others have pointed out it’s entirely possible that FB saw this coming and accepted that they might get sued as an acceptable price to cut down on competition.
It’s incredible that you’re unable to stop defending Facebook, even when Facebook is bitten by something they themselves forced on the rest of us. Why not just get a direct job with the PR(opaganda) department at one of these companies instead of blogging for them, Mike?
Re: Re:
This isn’t defending Facebook, it’s defending the appropriate allocation of liability. Do you think companies should be liable for what their customers do with their services?
Re: Re: Re:
Re: Re: Re: Defending the devil for you own sake
Because as tempting as it may be to sit back and see them get roasted by the very law their support helped pass they are in a much better position to handle the resulting legal action from it than a vast majority of the sites online.
As such a loss for them would be a loss for everyone, not just them, and in fact stands to do much more damage to sites/companies not named ‘Facebook’.
Re: Re: Re:2 Defending the devil for you own sake
If companies like FB don’t suffer any repercussions after supporting/pushing bad laws like FOSTA, what incentive will they have not to continue pushing similar shit on us in the future?
Re: Re: Re:3 Defending the devil for you own sake
You seem to be missing the point. Facebook may very well be happy to deal with this lawsuit because they know that while they can handle it, many potential competitors cannot. So letting them be attacked in this way is not only harmful to potentially many other companies, it could actually help cement Facebook’s position in the market. Can you see now why this is a bad thing?
Woodhull, et al v. US
Woodhull Freedom Foundation is lead plaintiff in a lawsuit challenging FOSTA/SESTA that’s already in federal court. The parties challenge the law on first amendment grounds, arguing that the law chills speech, because parties will choose to limit their own speech rather than risk violating the law. For example, Craigslist’s personals went off-line the day the law became effective, not because Craigslist was involved in criminal activity, but because the company wanted to avoid the expense of defending itself against spurious claims. The Complaint and other court filings can be found at: https://www.woodhullfoundation.org/fosta/
Woodhull lost in DC federal district court – the judge bought the government’s claim, mentioned above, that the law could only be used against parties involved in criminal activity, and has nothing to do with first amendment protected speech – ignoring the clear example of Craigslist. The decision has already been appealed, and could end up at the Supreme Court.
Foat-Sesta Law
To whom it may concern,
I have been going through many things like PORN SITES and they have not removed the third party ads on those sites . It is an abomination to the law . They will never get rid of porn but they can get rid of third party advertising I mean it is on all of the Channels and continues to grow . I am 65 and am really against the trafficking mess .
Re: Foat-Sesta Law
Who is "they"? And are you saying third party ads are illegal, or ads for sex trafficking?