Civil FOSTA Suits Start Showing Up In Court; Prove That FOSTA Supporters Were 100% Wrong About Who Would Be Targeted

from the who-would-have-guessed dept

During the run up to the passage of FOSTA, we were told two key things: (1) the law was absolutely necessary to stop sex trafficking websites like Backpage, and (2) that there was no way that the law would be abused to go after perfectly innocent websites. It's pretty easy to show that both of these claims turned out to be utter bullshit. The first one was especially easy, seeing as the Feds seized the site and arrested its founders a week before FOSTA became law. The second has taken somewhat longer to show, in part because for a long while no one actually seemed to be making use of FOSTA. For a law that we were told was absolutely necessary and that any delay in passing it would mean lives put at risk, it has been notable just how few actual lawsuits have been filed under FOSTA in the 18 months or so since it became law. State attorneys general, who pushed strongly for it, claiming they needed this hole in Section 230 to go after bad actor websites have still never used the law. Not once.

However, a few civil suits have just started to show up, as highlighted in a guest post at Eric Goldman's blog by FOSTA expert Alex Yelderman. She first points to two nearly identical lawsuits filed in state courts (one in Washington, one in California) against Craigslist and a bunch of hotels. Craigslist has sought to remove both to federal court as of early December. Both cases push, as Yelderman notes, "radical theories of liability" aimed at Craigslist. They also target activities that happened prior to FOSTA becoming law (as you may recall, Craigslist shut down its "erotic services" section all the way back in 2010, and then shut down all dating after FOSTA became law, noting that the liability risk was just too much).

That hasn't stopped the company from getting sued under the law, though, with it claiming that just the mere fact that Craigslist had such a section a decade ago proves that it was engaged in sex trafficking under FOSTA. As Yelderman points out, the fact that FOSTA is apparently retroactive and can reach back to such things, will almost certainly be found unconstitutional. As you may recall, even the DOJ told Congress this part was unconstitutional.

Even beyond that aspect, though, the claims in the lawsuit are crazy. They assume that FOSTA removed the requirement for knowledge on the part of intermediaries like Craigslist, even though supporters of the law insisted that wasn't the case. Indeed, a key part of the DOJ's defense of FOSTA in the Woodhull case that challenged the law (and which the district court rejected), was that FOSTA made no such change. As Yelderman explains:

The plaintiffs do not allege that craigslist knew anything about them specifically being trafficked — in fact, they count themselves among “thousands of victims” — but rather claim that the website was aware “that its erotic services section was well known to commercial sex customers throughout the United States as a place to easily locate victims for [SIC] as commodities, unpunished, anonymous, sexual abuse of children” and that once craigslist had been put “on notice of the human sex trafficking” (“from numerous sources, including but not limited to; lawsuits, government action, public outcry, news media, victims, activities and employee observation”), its ongoing operation “amounted to a venture with sex traffickers to efficiently market victims such as [the] Plaintiff.” (emphasis added)

This is a radical theory of liability, and raises the question: did FOSTA’s definition of “participation in a venture,” codified in 18 U.S.C. § 1591(e)(4), eliminate the requirement that federal trafficking defendants (including, now, intermediaries) have actual knowledge of trafficking? The government in Woodhull assured that court that “FOSTA changed nothing about Section 1591’s scienter standard,” and that a plaintiff “cannot credibly fear criminal or civil liability [if] it has no specific knowledge about the content of any of the material it obtains” or “be prosecuted under FOSTA [if] it has no knowledge about any individual webpage nor criminal intent.” (Defendants’ reply and supplement at 7, 8, emphasis added)). But even if craigslist ends up prevailing, the fact that the cases were filed at all sounds the alarm on FOSTA’s reach, and shows the Woodhull plaintiffs’ fear to be entirely reasonable

The other case that Yelderman highlights deserves even more scrutiny. It was filed against Mailchimp back in November, and I had meant to write it up at the time, but did not get the chance. It was filed by the same lawyer who has been filing a bunch of similar cases, including the nonsense cases against Salesforce, because Backpage used Salesforce. The lawyer behind those cases, Annie McAdams, even got herself quite a profile in the NY Times, where she meets the NY Times reporter at "her favorite Tex-Mex joint in Houston" and proceeds to brag that "she had acquired the restaurant’s secret margarita recipe in legal discovery when she sued the place for serving a man too much alcohol."

Bragging about abusing the law and the courts for personal gain in a NY Times profile says something about you. For what it's worth, McAdams' Twitter account currently has exactly two tweets (it's possible she's deleted others), with the first one being her getting angry at me for referring to her lawsuits as "nuisance suits." Quite a person there.

Either way, the claims against Mailchimp are absolutely the kinds of things we all warned would happen when FOSTA was being debated, and which FOSTA supporters insisted would never happen. The crux of the lawsuit is that when a Backpage clone, called YesBackpage, tried to startup after Backpage was seized, the site used Mailchimp for emails, and thus that makes it liable under FOSTA.

YesBackpage used Mail Chimp technology to enable efficient and targeted communication between itself and sex traffickers.

MailChimp was thereby an active party in the process of soliciting and fulfilling acts of sex trafficking.

MailChimp’s integrated communications software was used together to track postings of illegal advertisements, encourage greater use of these advertisements by traffickers, and effectively promote sex trafficking on an unprecedented scale.

MailChimp was the key technology used to unify the various digital components of the sex trafficking transaction, including the use of email to increase more advertising, more consumption of those ads, and thereby facilitate more sex trafficking.

Even if this lawsuit gets tossed out (as it should), the theory behind it is scary and worrisome. As Yelderman writes:

This case alleges that MailChimp — a marketing platform — “made available its marketing resources and expertise” to a Backpage copycat website and that “MailChimp’s marketing relationship with YesBackpage makes it responsible for its natural consequences — the sex trafficking of Jane Doe.” (Doe v. MailChimp complaint at 12). This view of “natural consequences” is breathtaking. Once MailChimp became “[a]rmed with knowledge of activity occurring through YesBackpage,” any services performed for the website would presumably constitute “participation in a [sex trafficking] venture.” There is no limiting factor in sight.

When sex trafficking is somehow construed as the “natural consequence” of a virtually any action, virtually no person or entity is safe from the threat of liability.

These are the kinds of things many of us worried about (and warned Congress about) in the run-up to SESTA/FOSTA, and we were told we were crazy. Yet, looking at the actual lawsuits filed under FOSTA seems to prove we were 100% correct.

What's even more troubling, through, is that they also show just how wrong the district court judge in the Woodhull case was to dismiss that case. The judge dismissed that case insisting that FOSTA included clear language that barred such widespread interpretations:

... plaintiffs ignore key textual indications that make clear that FOSTA targets specific acts of illegal prostitution not the abstract topic of prostitution or sex work.

That's certainly not how the lawyers who filed the lawsuits above see it. At the very least, one hopes that the DC Appeals court recognizes this in deciding the Woodhull appeal. If not, then hopefully one of these or related cases makes its way up to an appeals court and gets FOSTA itself tossed for any of the variety of problems the law has created for speech online.

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Filed Under: cda 230, fosta, intermediary liability, section 230, sex trafficking
Companies: backpage, craigslist, facebook, mailchimp, salesforce


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  • identicon
    Anonymous Coward, 9 Jan 2020 @ 9:47am

    dont be daft! just ask the pricks who supported this who was wrong. it sure as hell wont be them!

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

  • identicon
    Anonymous Coward, 9 Jan 2020 @ 9:54am

    Under the same reasoning applied to Mailchimp , any ISP can be sued if they do not take a site offline when notified that is is involved in sex trafficking. That is a powerful weapon for those who would censor the Internet, especially if these cases proceed.

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

    • icon
      Cdaragorn (profile), 10 Jan 2020 @ 8:21am

      Re:

      It's much worse than that. Notification is irrelevant based on what they're claiming for MailChimp. The fact that they provided their services at all is all that matters.

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

      • icon
        Bergman (profile), 11 Jan 2020 @ 3:51pm

        Re: Re:

        You could use this to take down the Democratic or Republican National Conventions, if there is no requirement to prove knowledge and any member of their respective parties has ever hired a prostitute.

        You could even sue the US government, since having ground to stand on facilitates sex trafficking and the US government owns at least one piece of ground such trafficking crossed.

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

  • identicon
    Anonymous Coward, 9 Jan 2020 @ 9:55am

    The FDA is participating in sex trafficking because it regulates the food being served by businesses to sex traffickers, QED.

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

    • icon
      wshuff (profile), 9 Jan 2020 @ 10:33am

      Re:

      Also, what about Greyhound? I bet they’ve provided the transportation. And let’s not forget budget motels.

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

      • icon
        Scary Devil Monastery (profile), 10 Jan 2020 @ 5:56am

        Re: Re:

        Water services, Power plants, the municipal road network, Congress, senate and The White House?

        Damn, those who have in some form, directly or indirectly, aided those sex traffickers are everywhere...

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

      • icon
        Avatar28 (profile), 10 Jan 2020 @ 12:34pm

        Re: Re:

        A bunch of hotels ARE being sued. So prepare for a bunch of ridiculous restrictions on hotel stays while they try to cover their ass. Want to stay in a room by yourself? Hmm, you might bring in a sex worker, can't allow that. Unmarried couple wanting a room? She might be sex trafficked, better alert the authorities to investigate before renting.

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

        • icon
          Scary Devil Monastery (profile), 13 Jan 2020 @ 6:17am

          Re: Re: Re:

          "A bunch of hotels ARE being sued."

          And POTUS is found to have paid a sex worker for an NDA and "undisclosed" services but that's just another case of Donald being Donald.

          If absurdity had mass the US would collapse under an event horizon by now.

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

    • icon
      Bergman (profile), 11 Jan 2020 @ 3:52pm

      Re:

      Not just the FDA either, you could sue Congress because it has enacted laws that make it possible for someone to engage in sex trafficking.

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

  • identicon
    Anonymous Coward, 9 Jan 2020 @ 10:03am

    So, why isn't the dude who "invented email" being held liable for sex trafficking? After all, it is a service they are using! Or better yet, lets go after the people who created the internet!

    /Sigh

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

  • icon
    wshuff (profile), 9 Jan 2020 @ 10:29am

    “The government in Woodhull assured that court that “FOSTA changed nothing about Section 1591’s scienter standard,” and that a plaintiff “cannot credibly fear criminal or civil liability [if] it has no specific knowledge about the content of any of the material it obtains” or “be prosecuted under FOSTA [if] it has no knowledge about any individual webpage nor criminal intent.”

    Just as an aside, Plaintiffs usually aren’t worried about criminal or civil liability when they file lawsuits. Defendants, on the other hand, can get all butt-puckered.

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

    • identicon
      Dan, 9 Jan 2020 @ 11:04am

      Re:

      Just as an aside, Plaintiffs usually aren’t worried about criminal or civil liability when they file lawsuits.

      That gave me pause as well. In context, I think the meaning was that the plaintiffs in Woodhull, who sued the government based on their fear of criminal or civil liability.

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

    • icon
      James Burkhardt (profile), 9 Jan 2020 @ 11:21am

      Re:

      In discussing a lawsuit in official filings, you refer to the suing party as the plaintiff in all filings, almost universally. This leads to weird issues in a counter suit or appeal, where the plaintiff in the countersuit or appeal was the defendant in the original case, and reading all these filings for an audience, on say YouTube, gets very confusing. (Leonard French of Lawful Masses has to explain this issue on a regular basis).

      As Dan suggests, the lawsuit was filed by Woodhull, so when the government responds to Woodhull's concerns, they refer to Woodhull as plaintiff, as is proper when referring to Woodhull in a court filing where Woodhull is the plaintiff.

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

      • icon
        James Burkhardt (profile), 9 Jan 2020 @ 11:34am

        Re: Re:

        Ok, Mea Culpa time. Reading the full quote from the article, I realized that the issue is that the quote is from Yelderman, not the government's filing. Specifically, he was providing a summary of the arguments, and the government's actual argument makes a bit more lingual sense when you establish context, that there were multiple plaintiffs in this case. The argument being summarized was that none of the plaintiffs in the case should fear liability. So in context, saying "...a plaintiff “cannot credibly fear criminal or civil liability..." Yelderman was noting that the argument was made for all plaintiffs in the case.

        Combined with the way we refer to the potential defendants in such a case as plaintiffs, I am more sensitive to the lingual confusion.

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

        • icon
          wshuff (profile), 9 Jan 2020 @ 12:33pm

          Re: Re: Re:

          I didn't look at the case being quoted, just at the quote, so what you and Dan say makes sense. On the other hand, the quote doesn't say "Plaintiffs," which might be how I would refer to the specific plaintiff in a case, or even "These Plaintiffs," etc. The quote says "a plaintiff," which I would take to mean plaintiffs generally. For that reason, I think it's just a typo and he meant "defendants."

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

  • identicon
    Anonymous Coward, 9 Jan 2020 @ 10:40am

    Sucks being wrong, doesn't it?

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

  • identicon
    Michael, 9 Jan 2020 @ 10:52am

    once craigslist had been put “on notice of the human sex trafficking” (“from numerous sources, including but not limited to; lawsuits, government action, public outcry, news media, victims, activities and employee observation”), its ongoing operation “amounted to a venture with sex traffickers to efficiently market victims such as [the] Plaintiff.

    I would think the various state departments of transportation would be in serious trouble as I am sure sex traffic is frequently carried around this country on the streets they maintain.

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

    • identicon
      Anonymous Coward, 10 Jan 2020 @ 9:22pm

      Re: sex trafficking

      Yes, as soon as the shaggin' wagon reaches sixty-nine miles an hour, you're going to see some serious s#!t...

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

  • icon
    ECA (profile), 9 Jan 2020 @ 12:19pm

    waiting for it.

    When wil the first Major Email provider be taken to court.
    With the logic, that they had to know it was happening, because it was their service..
    ISP's are going to drop Email services, online only.

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

  • icon
    ECA (profile), 9 Jan 2020 @ 12:52pm

    https://www.kivitv.com/news/former-idaho-budget-director-marty-peterson-charged-with-11-more-felonie s-in-child-porn-case?fbclid=IwAR3G3ePDoD_m-0dugHKmJY7P3YBLsLkz3Byjq5RP0c2F_WRcx8HzSs0vuMk

    Former Idaho budget director Marty Peterson charged with 11 more felonies in child porn case

    During Peterson’s initial arraignment on Oct. 4, Ada County Deputy Prosecuting Attorney Katelyn Farley told the court that the Idaho Internet Crimes Against Children Unit received a “cybertip” in January 2019 from Microsoft Bing alleging that child pornography had been uploaded to a computer.

    Bing?? tracked someone from their site that searched for Child porn.. Thats another lawsuit.

    But lets consider the group thats Tracking this, and brought this to court. Was/Is NOT part of Fosta and has been around along time. Has Fosta improved anything?? NOPE.

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

  • identicon
    Anonymous Coward, 9 Jan 2020 @ 1:03pm

    Is this a user-account thing on twitter? I tried the "two twit" link and got redirected to a "you must log in first" page. The twits you can read from that account that are available without signing in? one re-tweet. Bravo!

    Uh, sorry, twitter, not gonna join just to look at other people's posts.

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

    • icon
      Stephen T. Stone (profile), 9 Jan 2020 @ 1:10pm

      You can view tweets on a user’s public timeline, but to read the timeline that has tweets that count as replies, you must log in as a user. Of course, if you have the direct links to such tweets, you don’t need to log in. To wit: tweet #1 and tweet #2.

      (And for the record, she also retweeted this tweet, which links to a story about hotels being sued for promoting sex trafficking.)

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

  • identicon
    Anonymous Coward, 9 Jan 2020 @ 2:22pm

    Let's not forget some of the most heinous sex trafficking of all, stopping people from engaging in lawful sex to enforce a different religious world view on a non-consenting group.

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

    • icon
      Scary Devil Monastery (profile), 10 Jan 2020 @ 6:00am

      Re:

      "Let's not forget some of the most heinous sex trafficking of all, stopping people from engaging in lawful sex to enforce a different religious world view on a non-consenting group."

      No. Seriously, bigotry is bad, but people making laws against two concensual adults having sex does NOT equate or analogize well to actual sex trafficking which is basically assembly-line rape.

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

  • icon
    Ben L (profile), 9 Jan 2020 @ 5:30pm

    Complaint

    Reads first sentence of the complaint:

    Fighting sex trafficking is hard enough without U.S. tech companies helping foreign-based sex trafficking companies grow and profit from their trafficking in this country.

    Losing too many brain cells, have to stop.

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

    • icon
      ECA (profile), 9 Jan 2020 @ 6:19pm

      Re: Complaint

      Didnt someone go thru al the numbers they had forecast for People in the USA.. like 100,000 endangered Children.
      And Found less than 200, reported missing, that no one had found.
      The other 99,800, were that the police didnt Change the paper work, or file it properly, from A person or child that left for REASONS, but had been found..

      And still the subject is, Arrest them all. And no real solution to kids, children, others in danger, from Family, friends, Strangers..
      WE USED to have a Program of safe houses.

      Any real subject will come down to HOW to fix it, not How to Arrest someone.

      The concept in the end is WHO has the money in the USA to kidnap and care/feed/Doctor/raise a Child.
      This is a law that would have a 0.0001% chance of any use. As that would be about the number of children affected.
      And there are already Laws that cover 99% of this, that still has Little help or facility to assist those found.

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

  • identicon
    Anonymous Coward, 9 Jan 2020 @ 5:47pm

    You mean John Smith lied? I'm shocked, I tell you, shocked!

    ...Well, not that shocked.

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

  • identicon
    bobob, 9 Jan 2020 @ 6:52pm

    When has the unconstitutionality of a bill ever caused a bill to fail to pass when it was being sold by emotional arguments to a public which, for the most part, can't understand basic logic?

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

  • icon
    jdgalt (profile), 2 Mar 2020 @ 7:53am

    The biggest problem with FOSTA and similar laws is that they use the bogus term "sex trafficking" to persecute the providers and clients of voluntary sex work by adults by making it sound like kidnapping and rape. It's an outrage that sex work is still banned or restricted at all.

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


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