We’ve talked for a while about the sheer silliness of (mainly) Republican politicians whining about supposed “anti-conservative bias” on social media platforms. As we’ve pointed out, the actual evidence hasn’t shown any evidence of bias. The random anecdotal examples of badly moderated content have mostly just shown how difficult it is to do content moderation at scale. The “bad” moderation decisions impact lots of folks across the political spectrum — it’s just that some grandstanding Republicans like to engage in confirmation bias (the only actual bias that seems to be occurring here) to suggest the moderation mistakes are politically motivated. We’ve pointed out multiple times now that crying wolf on this issue is not a good look for conservatives — on multiple levels.
Beyond the fact that the evidence seems to disprove the claims of bias (oh, and yet another study has shown no evidence of bias), for years these very same Republicans kept attacking the idea of the “fairness doctrine,” which was an FCC rule in place for a few decades, demanding “equal representation” of political views on the public airwaves. It hasn’t been in place for a while, but for a few years, this same group of Republicans grandstanded about false claims that Democrats were trying to bring it back. And yet, what they seem to be demanding now is the return of the fairness doctrine, but in an even more ridiculous way. Rather than on the public airwaves — where at the very least there was some legitimate claim to the government being able to set some conditions — these Senators now seem to want to force private companies to run businesses the way they want them to. What a bunch of hypocrites.
And the largest of the hypocrites is Senator Ted Cruz, who has continued to repeat this myth, holding multiple hearings on the topic, including a new one yesterday, with representatives from Facebook and Twitter in attendance. Someone from Google was supposed to be there but (get this), Ted Cruz rejected the Google witness, likely after discovering that Google was sending a former Ted Cruz staffer, who would have done a nice job debunking his former boss’s nonsense. Kinda ironic, in a hearing on platforms supposedly blocking conservatives from speaking, the Senate itself decided to block a conservative from speaking.
Most of the hearing went pretty much as planned, with the usual nonsense. Cruz, once again, misrepresented the nature of Section 230 of the CDA and also made noises about changing it. He also threatened other attacks on social media companies, including antitrust. The big “gotcha” moment that some in the press have picked up on was particularly dumb. Cruz rolled out an anti-abortion quote from Mother Theresa that had been used in an ad on Twitter that was apparently blocked, and demanded that Twitter and Facebook execs answer “is this hate speech?”.
That, of course, misses the point massively. As Twitter’s representative on the panel, Carlos Monje Jr. noted, the tweet was caught in an automated system review, but that the advertiser behind it remains as an advertiser in good standing on the platform — and he also noted that advertisements on both sides of the abortion debate had been blocked at times on Twitter, which makes total sense, given the strong emotions and controversy felt around that issue. But the bigger point is trotting out a single example is nonsense. It’s grandstanding. As we’ve discussed time and time again, content moderation is an arena of massive gray space, rather than black and white. There are tons of judgment calls, and much of it depends on what it is the platform is actually trying to accomplish. Some platforms don’t want controversial content. Some platforms don’t want “hate” speech. But what falls into those categories is an open question and in a free market system (the kind Republicans used to claim they supported), we let the companies decide for themselves.
Thankfully, a bunch of conservative/Republican groups and commentators spoke out against Cruz’s nonsense as well. The group Americans for Prosperity put out a statement calling out Cruz’s nonsense:
… asking the government to police online speech ? either through direct action or by cajoling private firms ? sets a dangerous precedent that will undermine essential elements of free speech. Government regulation of digital speech won?t protect free speech. It will only increase the likelihood of government censorship.
?Tech companies have the freedom to run their businesses as they see fit, including setting standards for what user content they do and do not want to host, and Americans have the right to speak through alternative platforms or share their opinions elsewhere.
?Today?s largest tech platforms may have the means to manage the legal risk of administering an online speech code but smaller startups do not, so regulation intended to curtail the influence of large tech companies would only cement it.?
?Mind-bogglingly, it?s conservatives who are now leading the charge to resurrect the Fairness Doctrine,? continued Sz?ka. ?Conservatives spent nearly 80 years crusading against government meddling in media. Yet now, they?re trying to subject website operators to essentially the same, hopelessly arbitrary standard of ?neutrality? they long opposed. They?ve twisted themselves into ideological pretzels by convincing themselves that Section 230 is some kind of special subsidy to ?Big Tech? and that the law has always required neutrality. Both claims are patently false. All websites that host user content need clear legal protections against broad liability for user content. Without such protections, the fear of being sued will shut down the smallest sites ? and, ironically, protect Big Tech from competition. But even the biggest sites will do less of the kind of content moderation that makes online communities and services usable. In the end, how they run their services will become subject to political pressure. Sadly, it already is, which seems to be the purpose of conservative fear-mongering on this issue.?
?The anecdotal examples of anti-conservative bias in content moderation just don?t hold up,? concluded Sz?ka. ?Cruz, Graham and other leading Republicans have repeatedly cited bogus examples of conservatives being ?censored.? Most exemplary is the brazenly false claim that now Sen. Marsha Blackburn was censored for her pro-life views. In fact, her Senate campaign launch video centered on the defamatory claim that Planned Parenthood was selling baby body parts. Neither this video nor her account were taken down by the major platforms; instead, they simply declined to allow her to pay to promote the video because it violated their terms of service. This isn?t censorship; it?s just ad companies preventing the abuse of their advertising systems. Sadly, the companies involved haven?t had the courage to debunk these claims clearly because of the vast political pressure wielded against them by lawmakers bent on partisan revenge. Their timidity should remind us all that the First Amendment bars bullying media companies just as much as explicit censorship.?
Indeed, during the hearing, Marsha Blackburn brought up the bogus ad controversy, saying: ?Should Twitter allow ads that denounce Planned Parenthood for selling baby body parts?? That’s a ridiculous question for a sitting Senator to ask. No one in Congress should be determining what ads are allowed or not allowed on any platform. And, again, Twitter did allow Blackburn’s video. It just said such an ad violated its policies (which it did, because it was nonsense).
Others have raised this point in the past as well. The Cato Institute last year questioned why Ted Cruz — a supposed conservative free marketer — seems so against property rights when it comes to the property rights of internet companies. It’s almost as if he’s a total hypocrite who believes in government intervention against companies he dislikes, but insists on no government intervention when it’s companies he does like. Remember, this is the same Ted Cruz who falsely attacked “net neutrality” as a government takeover of the internet.
And now he’s whining that the government needs to force neutrality on the internet.
As you may have heard, the UK Parliament put on quite a show on Tuesday in what it claimed was an attempt to go after Facebook for its “fake news” problem. Of course, in the process, the hearings themselves created some fake news that undermined the entire point. To be clear, upfront, Facebook does have many issues that should be taken seriously. But this hearing did not get at those, and actually showed how, when political grandstanding is the focus, it’s quite easy to create “fake news” in the process. Still, boy, was that hearing theatrical. It was apparently the first time since 1933 that the UK Parliament had representatives from other countries participate in a hearing, and so there were nine other countries present, including Canada, France, Belgium, Brazil, Ireland, Latvia, Argentina and Singapore. On top of that, Facebook CEO Mark Zuckerberg made the bad decision of refusing to participate in the hearings, giving the Committee the opportunity for this classic photo op:
9 countries. 24 official representatives. 447 million people represented.
— Digital, Culture, Media and Sport Committee (@CommonsCMS) November 27, 2018
Facebook’s VP of policy, Richard Allan appeared instead, and despite even him admitting that it didn’t look great that Zuckerberg wasn’t in attendance, he is actually someone who would probably be better positioned to answer actual substantive questions about Facebook’s policies in these areas.
But that would only matter if the inquisitors were interested in discussing substantive policy matters. And it did not appear they did. They were there for the grandstanding, repeatedly blaming Facebook for reflecting back human nature and all its foibles. There were questions about what Facebook was doing to protect democracy — which I don’t think is actually Facebook’s job (indeed, seems like that’s the government’s job, no?). But, of course, the main highlight of the show was the organizer of the hearing, MP Damian Collins, who you’ll recall seized a bunch of documents, under questionable circumstances, from a US business exec who was visiting the UK.
The “documents” were supposed to be the star of the show, and Collins dropped the apparent big bombshell during the hearing: Facebook had, he claimed, actually been alerted to an attempt by Russian’s to mess with the site all the way back in October of 2014. As summarized by Wired:
Collins cut right to the heart of the documents during the hearing. In October of 2014, he said, a Facebook engineer notified the company that entities with Russian IP addresses had been using a Pinterest API to pull out three billion data points a day from the Facebook friends API. Collins wanted to know what happened after that information was brought forward.
“Was that reported or was it kept, as so often seems to be the case, kept within the family?” he asked.
Ooooh. Intrigue.
Except… it was bullshit. Facebook revealed the redacted emails in question and it showed that while an engineer had initially raised concerns that it appeared that Russian IP addresses were using the Pinterest API access to get lots of data, further investigation showed that he was wrong. The initial email says that the person is seeing calls from “Russian IPs” and is having the Site Integrity team investigate, though it’s quickly followed up with a note that “those might not have been Russian IPs after all, we are digging.”
Then, on the very same day — indeed, just a little over two hours after the initial alarm of Russian IPs — the person emails that it was a false alarm.
If you can’t see that, it says:
Ok, thinks are not as bad as they seemed, apologies for the trash. There was a series of unfortunate coincidences that made me think the worse.
1/ We verified that the endpoint has not been “leaked” and calls seem to be coming all from Pinterest servers.
2/ We verified that the volume of calls per day is actually around 6M successful and 40M failed due to invalid access.
In short, it wasn’t 3 billion data points and it wasn’t Russia. Also, it wasn’t abuse of the system. And yet, the way Collins raised the issue, he suggested that Facebook was aware that Russians had abused the API to access 3 billion data points and then kept it secret. In other words, Collins’ explanation of what happened was 100% incorrect and misleading. It was misinformation. Or, as some like to call it: fake news.
And while it will not be, this should be the lesson that the folks who held this hearing should learn: there are all sorts of ways to make incorrect claims. Some of them on purpose. Some of them by accident. Some of them because of confirmation bias of what you want to be true. And expecting Facebook to magically understand what is what… is insanity.
So, not that MP Damian Collins will respond to me (perhaps I should set up a dramatic photoshoot of an empty chair with his nameplate), but I’m wondering. Does he think Facebook should block all the stories reporting on his false claim about them supposedly “hiding” news of Russians abusing the API to extract 3 billion data points? Or would that, you know, be crazy?
Once again, it appears that comedian John Oliver is doing much more to dig into actual political problems than much of the rest of the news. The latest was his show this past Sunday about the weird and wacky world of state Attorneys’ General. If you haven’t seen it yet, it’s worth a watch:
Oliver’s piece focuses on state AGs (of both parties) filing partisan lawsuits against the federal government (of the opposing party). But the real “scandal” is in how various corporations have recognized the power of state AGs to effectively create policy (mainly by causing trouble for competitors). We’ve discussed this aspect multiple times in the past, mainly around Mississippi’s Attorney General Jim Hood going after Google at the request of the MPAA. And, of course, it wasn’t just “at their behest,” it was literally Hood more or less rubber stamping a demand letter written by the MPAA’s lawyers and sending it on as his own. The emails from the Sony hack revealed that the plan was literally to have the MPAA lawyers do all the investigative work and prepare many of the documents, and hand them off to “friendly” state AGs to shake down and threaten companies such as Google.
And they didn’t come up with this idea out of nowhere. It came in response to a 2014 NY Times article detailing how corporate lobbyists were “pursuing” state AGs directly in plans to cause trouble for competitors (or to get themselves out of investigations).
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.
A robust industry of lobbyists and lawyers has blossomed as attorneys general have joined to conduct multistate investigations and pushed into areas as diverse as securities fraud and Internet crimes.
But unlike the lobbying rules covering other elected officials, there are few revolving-door restrictions or disclosure requirements governing state attorneys general, who serve as ?the people?s lawyers? by protecting consumers and individual citizens.
Most normal people would look at this and see the horrors of soft corruption. The MPAA looked at this and appeared to think, “hey, we should get in on that.” (I’ll leave aside the irony of the strict copyright maximalist MPAA sending around an entire copy of a NY Times article with no commentary to all the top staff at the MPAA and all the top legal folks at its member studios…) That resulted in them crafting a big plan to “fund” significant amounts of cash directly for doing the dirty work for state AGs to target Google.
And, of course, it gets even worse than that. Years back, we wrote about Chris Tolles’ harrowing tale in which a long list of state AGs effectively tried to shake down his startup, despite everyone admitting it had not broken any laws. The whole story is worth reading, but perhaps the most incredible part is after Tolles spoke with the state AGs, openly provided all the details on how his site operated, and why it was clearly within the law… they then went after him in the court of public opinion by misrepresenting everything he said (but never actually going after him in court):
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.
That was hardly the only example. Over the years, we’ve regularly detailed state AGs (of both parties) specifically picking on tech and internet companies with bogus legal threats, but which easily made lots of headlines, and helped get their names and faces in the paper. A lawyer friend has joked that, NAAG, the National Association of Attorneys General, it really stands for the National Association of Aspiring Governors. That’s because many, many, many state AGs end up seeking higher office — either as governor or US Senator. So getting their names in the news, even for bullshit reasons, is seen as valuable for name recognition.
Oliver’s point in all of this is that with many state AGs up for election next week, you should take the time to understand who is really running. And this is not a partisan message. We’ve covered awful state AG practices from members of both parties (and, occasionally, good state AG actions from members of both parties). But who is in that role really does matter, and it’s time we really started paying attention to who we’re putting in those powerful positions.
Back in July we were flabbergasted to see a stunningly misleading and dishonest video put out by the the House Judiciary Committee trying to claim that FOSTA had been a huge success in stopping sex trafficking. There is literally no evidence to suggest this, while there’s plenty of evidence to show the harm that has been created by FOSTA. One of the claims in the video came from Rep. Ann Wagner, who was the original sponsor of FOSTA and has been a leading voice in stoking the exaggerated and misleading moral panic around sex trafficking (which is a real problem, but very, very limited compared to what many — including Wagner — have said about it). Wagner’s latest trick has been to try to massively expand the PATRIOT Act for spying on Americans by again freaking everyone out about sex trafficking.
As we noted back in July, in the video, Wagner tries to imply that FOSTA helped kill off 90% of sex trafficking. She worded it awkwardly so that it clearly implies 90% of sex trafficking went away due to FOSTA, but it could also be read to just say that 90% of sex trafficking ads went away. As we pointed out at the time, this was clearly not true either way. While Backpage contained many ads, it stopped with those ads a year and a half before FOSTA was law, and was taken down by the feds before FOSTA was signed. So there was literally no way that FOSTA could be in any way credited for a drop in ads coming from Backpage.
I missed it, but a few weeks later, the Washington Post set its fact checker on these specific claims, and did an even more thorough analysis, even asking Wagner’s office for details. And those details make Wagner look even worse, leading the Washington Post to give her the full three Pinocchios in their final ruling on the accuracy of her claim. Specifically, Wagner’s office argued that a DARPA analysis saw a “weekly global ad volume dropped 87 percent from January to April.” But, as the WaPo article notes (and as we did as well) the vast majority of that was from the takedown of Backpage, which was not due to FOSTA.
But, from there things get even worse. The Washington Post asked DARPA for what happened after April and found… things are not at all what the House Judiciary Committee and Wagner were claiming. Indeed, while there was an initial decline due to Backpage shutting down (again, not due to FOSTA), it quickly went back up after April — conveniently ignored by Wagner and the HJC. Why contaminate the narrative with facts:
Worldwide ads had a daily average of about 105,000 when FOSTA-SESTA passed on March 21 and had dropped 28 percent by the time Backpage was closed on April 5. It then plunged another 75 percent and reached a low of 19,456 on April 17, for a total decline of about 82 percent.
But on the day the Judiciary Committee posted the video, sex-trade ads were back at about 50 percent of the daily volume before the law had passed; as of Aug. 11, they were at almost 75 percent….
?The volume of ads dropped dramatically after the shutdown of Backpage but has been climbing since,? said Chris Dickson, director of research engineering at Uncharted. ?There is now a volume approaching what we observed before.?
So, once again it appears that Wagner and the HJC like to completely make up stories for grandstanding political purposes. They over-hyped the size of sex trafficking to pass this bad law, and then they massively over-hyped the impact of the law, ignoring (1) that the impact they took credit for had nothing to do with the law, and (2) ignoring that the data didn’t actually support what they claimed.
So why the hell is anyway still listening to Rep. Ann Wagner and her use of “sex trafficking” to try to pass new laws?
In the last few months, we’ve seen a fairly astounding amount of idiotic grandstanding from both parties in Congress, basically trying to out stupid themselves in attacking internet companies. On the Democratic side, they’ve been peddling incomprehensible nonsense about how internet companies have to stop bad information from spreading (and also some misleading claims about antitrust). On the Republican side, they keep dragging internet companies up to Capitol Hill and making ridiculous and blatantly misleading claims about how they’re “censoring” conservatives, which is a bunch of utter nonsense.
And here’s the thing: most of the politicians spewing this stuff know it’s pure nonsense. But, they also know that it’s an effective money raising tactic. When Democrats and Republicans clash over an issue, all too frequently, it’s really about riling up people for donations, rather than any actual policy agenda. And it appears it’s not going away any time soon. Despite multiple hearings that have only served to make Congress look incredibly hypocritical and/or ignorant, House Majority Leader Kevin McCarthy is now joining the fray, saying he wants Twitter CEO Jack Dorsey to testify about Twitter’s made up censoring of conservative voices.
And while I’m not sure whether or not some other members of Congress grandstanding on this issue actually understand what’s going on, McCarthy of all people should know better. He actually has at least some history of understanding tech issues better than many of his colleagues. But, apparently, these days, the way to raise money is to make blatantly false or misleading statements against tech companies, and thus, McCarthy feels the need to join in on this silly dog and pony show. I’m sure we’ll get another stupid hearing out of it that demonstrates to anyone just how clueless Congress is, but I guess if it gets a bunch of ignorant people to kick in to his re-election campaign, that’s all good, right?
So… remember a couple weeks ago when I wrote about a House Judiciary Committee in which the supposedly “free market / free speech” supporting Republicans on the Committee were grilling private companies about how they need to be regulated as utilities to stifle free speech? Well, not surprisingly, the whole situation has gotten much worse and much, much stupider. It started, of course, with a bit of pretty bad reporting by a Vice reporter named Alex Thompson, who wrote an article incorrectly claiming that Twitter was “shadowbanning” Republicans.
Shadowbanning, of course, is the well known moderation technique in which certain sites allow certain users to think they’re participating, but really making it so that no one else can see their contributions. It’s been shown to be fairly effective against trolls. Either way, Thompson’s report was wrong on multiple levels — which was disappointing. Vice has a whole separate site called Motherboard, which has some of the best tech reporters in the business, who likely could have set Thompson straight and prevented the company from running such a misleading story, but that did not happen. First of all, Twitter was not shadowbanning anyone. The issue at hand was that for some users, if you searched on their names, those accounts did not show up in the autocomplete. That’s it. If you clicked return at the end of your search, the accounts still showed up. If you followed the users, you still saw their tweets. It was not shadowbanning by any stretch of the imagination.
Also, the issue was not partisan, even in the slightest, contrary to Thompson’s reporting. As others showed, the failure to show certain users in autocomplete was impacting a bunch of people and not just Republicans. Indeed, Twitter admitted that there was a bug in its autocomplete feature which impacted hundreds of thousands of accounts including plenty of people in both major political parties. Twitter fixed this relatively quickly. Thompson’s article at Vice is still not corrected. Instead, it has a note claiming that Twitter is “no longer limit[ing] the visibility of some prominent Republicans,” which implies, completely falsely, that it was targeting Republicans.
But, alas, partisan stupidity is like no other stupidity, and this bad and incorrect story first got picked up by the President, who tweeted (of course) that Twitter was shadowbanning prominent Republicans — even though it was not.
Twitter ?SHADOW BANNING? prominent Republicans. Not good. We will look into this discriminatory and illegal practice at once! Many complaints.
And, from there we were off to the races. Rep. Devin Nunes, picked up the story and claimed that he was considering taking legal action against Twitter. This is stupid on so many levels. First of all, if Twitter were actually moderating its platform in this manner, it has every legal right to do so. And, as we noted about that hearing earlier this month, it’s very bizarre to see supposedly “free speech / free market” Republicans suddenly arguing for heavy regulation of both speech and industry. Second, there is absolutely no legal basis for any kind of legal action. It would get laughed out of court. Third, and again, this is kind of important, Twitter wasn’t discriminating against Republicans and wasn’t shadowbanning them. You would think that a Congressional Representative, preparing to take legal action against a company, would at least take the time to understand what happened.
And, he wasn’t the only one. Rep. Matt Gaetz, who was the star of our post about the Judiciary Committee hearing for being beyond wrong in claiming that Section 230 and the First Amendment are in conflict — and also flat out misrepresenting what Twitter’s representative said on the panel concerning Twitter’s First Amendment rights — has apparently filed a complaint with the Federal Election Commission about Twitter. The details are scarce, but when appearing on Fox News late last week, Gaetz said the following:
I?m certain there were only four members of Congress who had their voices suppressed on Twitter: Matt Gaetz, Jim Jordan Mark Meadows, and Devin Nunes. That would be one hell of a coincidence. My suspicion is that if people were effectively communicating a conservative message, they got caught in Twitter?s troll trap. The reason that I think that is illegal is because it gives advantages to our political opponents. It gives them access to the platform that we don?t have.
If Twitter was a billboard company and they gave Democrats access to their billboards and not Republicans, that would be an illegal corporate donation to the campaigns of Democrats. Here, instead of the billboard, it?s the auto fill-in function that?s a part of Twitter?s search feature that wasn?t available to me, Devin Nunes, Mark Meadows or Jim Jorden. And it?s available to Democrats.
Except, again, that’s not at all what happened. There was no suppression. There was no shadowbanning. There was no targeting of Republicans. There was no targeting conservative messaging. There was no “illegal corporate donation.” This is all grandstanding nonsense, that may play well to a certain set of very angry people, but has no basis in reality.
In the end, everyone comes out of this looking bad. Vice and Alex Thompson should post a correction to their article and apologize for what misleading crap it was. Trump should never have tweeted the nonsense, but you know that’s not going to stop him. But Nunes and Gaetz certainly don’t need to enable and further this nonsense, though, again, that appears to be well within their character. However, for politicians bleating on about fake news, it seems notable that they seem to be contributing to the spread of it. Of course, the real end game here is an attempt to effectively block Twitter, Facebook and Google from trying to improve the nature of discourse on their platforms. In short, this is a trollish effort to force platforms to allow trolling. It’s phony outrage that should be ignored, but it won’t be, because so much effort has been put into a totally fake claim that conservatives are somehow being targeted that platforms have to bend over backwards to make sure that anything they do to improve their platforms doesn’t accidentally impact someone in conservative circles.
In the end, don’t trust everything that you read online, and, for once, try to elect people who aren’t ignorant, grandstanding morons.
The video makes a number of blatantly false claims from various members of the House Judiciary, but let’s focus mainly on the claims of Ann Wagner, whose original bill kicked off the process that became FOSTA/SESTA. She’s been spreading moral panic nonsense about sex trafficking and the internet for ages, so it’s no surprise that she continues to do so. But, at one point in the video she states:
“We have shut down nearly 90% of the online sex trafficking business and ads.”
She kind of swallows that last “and ads” bit so you could miss it, but either way it’s utter and complete nonsense. I looked all over for any evidence of the claim that 90% of online sex trafficking has been stopped and there doesn’t appear to be an iota of support for that. The only stat I could find that is possibly being twisted to make this argument is that when Backpage was seized earlier this year — notably before FOSTA/SESTA was signed into law — a Reuters report claimed that 90% of Backpage’s ads were for “adult ads.”
But, that in no way translates to Wagner’s nutty claim for a whole long list of reasons:
Backpage was not the entire online market for sex trafficking ads (amusingly, Wagner admits this earlier in the same video, in which she falsely claims that there were “hundreds and hundreds of websites selling our children with impunity” < -- narrator: "there were not, in fact, hundreds and hundreds of websites doing so, and they were not doing it with impunity."
Many of the adult ads on Backpage were not for sex trafficking at all
Backpage stopped hosting adult ads a year and a half ago in January of 2017, over a year before SESTA/FOSTA became law and over a year before the site was seized by the feds.
And, again, Backpage was seized before SESTA/FOSTA was even signed into law.
So, where, exactly is Wagner getting this stat of having shut down 90% of online sex trafficking and ads because of FOSTA/SESTA?
There’s other nonsense in the video as well. Wagner’s other whopper was:
“If it’s a crime offline, by golly, it’s a crime online!”
Uh, yes. But that’s always been the case. FOSTA/SESTA didn’t change that. All it did was create a series of new crimes for third party tools and services used by not just sex traffickers, but sex workers. Sex trafficking was already illegal and this bill did absolutely nothing to change that. It is simply wrong to imply that FOSTA/SESTA suddenly made something illegal online that had been legal online before but illegal offline. It’s not true.
Then there’s Mimi Walters’ who brought the amendment that combined FOSTA and SESTA, making both bills worse. Her credibility on this whole thing is already suspect, given that after the feds took down Backpage, she took credit for it falsely saying it was because of FOSTA/SESTA even though that bill was not law yet. But, here she is in the video spewing more nonsense:
“This legislation will now make it illegal to sell people online and give those survivors the opportunity to seek justice.”
Except it was always illegal to sell people online (and offline!) and nothing in FOSTA/SESTA changed that. All it did was create a new crime in which tools and services used by traffickers could also be found to be criminal in addition to the people who were doing the actual selling of people (while also making it harder for law enforcement to find those people — but we’ll get there). She continues:
“Websites that knowingly facilitate sex trafficking are no longer immune from legal action.”
Except they were never immune from legal action. Facilitating sex trafficking is a federal crime and nothing in CDA 230 contained immunity for federal crimes. It really makes you wonder why the primary “authors” of the bill seem to feel so hard pressed to flat out lie about what their own bill does. Why would they do that?
The video also has Judiciary Committee Chair Bob Goodlatte with more of his nonsense as well.
“The provisions of this law are already making the internet safer.”
[Citation needed] Amusingly, right after Goodlatte says that, the video in an effort to support this claim flips to a news report about the shutdown of Backpage… which (and I know I’m repeating myself here) was taken down without the helps of FOSTA/SESTA since it wasn’t even signed into law.
Also, the evidence to date leans heavily against the claim that it has made the internet safer. Indeed, already we’ve seen reports about sex workers being killed and pimps being empowered now that sex workers can’t use sites like Backpage to screen clients. And a big study has highlighted how a lack of such services likely leads to a massive uptick in murder of women (not just sex workers, but women in general). And, lest we forget, police departments themselves are now complaining that they can no longer find sex traffickers thanks to the law.
Notice that the video addresses none of those effects (all of which were widely predicted). It just insists that the internet is safer. This is legislative fantasyland.
Of course, there’s another oddity here. Why the hell is the House Judiciary Committee Republicans suddenly putting out such a video? The bill has already passed and it’s already doing lots of damage. So why is Congress spending taxpayer money on a professionally edited video talking up a bunch of nonsense? Perhaps, as many have suggested, a key part of FOSTA/SESTA was always about grandstanding about how these politicians are “tough on sex trafficking” even if that’s not accurate at all. And now that we’re heading towards election season, I guess they have to milk that grandstanding bullshit for all its worth. Go spend your constituents hard-earned tax money by lying to them! What a job!
Of course, another reason for all of this may be the recent lawsuit claiming that FOSTA/SESTA is unconstitutional. While we’ve written about it already, the stories of some of the plaintiffs in that lawsuit tell the real story of how FOSTA/SESTA is harming people. Among those suing are a national alliance of Asian massage stores, who note that, thanks to FOSTA/SESTA their completely legitimate businesses are now being blocked from advertising, because some falsely assume that any Asian massage stores must be engaged in the sex trade.
…many Internet sites and review platforms flatly refuse content from or about Asian massage providers, DiBenedetto indicated. ?Since it?s assumed we?re in the sex trade because we have Asian women offering Asian massage, platforms that used to run our ads and carry our reviews all the time now want nothing to do with us.?
The loss of those online outlets is devastating to providers of Asian massage services, said DiBenedetto. ?They are unfairly cutting our stores off from the consumers we need to attract in order to stay viable. The business model of the typical Asian massage store requires a continual inflow of new customers. That inflow is heavily disrupted by us being profiled.?
DiBenedetto said Asian massage studio owners and masseuses now, ?go to work every morning wondering if today will be the day their livelihoods vanish because all the doors have been slammed in their faces. This is so demoralizing, not to mention dehumanizing.?
So, to summarize, the House Judiciary Committee appears to be spending taxpayer money on a video celebrating a law that doesn’t do what they claim it does, taking credit for a site takedown that wasn’t because of the law, making up stats that have no basis in reality, ignoring the fact that their law has put many lives in real danger while making it more difficult for law enforcement to do their job, not to mention harming small business owners at the same time.
And people wonder why Congress’ approval rating is so low.
* Our standard practice is not to name the party of politicians unless that’s central to the story. In this case, the video is literally coming from a YouTube account that is apparently run by the Republicans on the House Judiciary. And this is not a “Republican v. Democrat” thing, because the Democrats on the Committee also supported FOSTA/SESTA. It was bipartisan nonsense, so if you happen to support the blue team or the red team, stupid generalizing comments about one party or the other will just make you look silly and tribal, rather than insightful or intelligent.
So, yesterday the House Judiciary Committee did what the House Judiciary Committee seems to do best: hold a stupid, nonsensical, nearly fact-free “hearing” that serves as nothing more than an opportunity for elected members of Congress to demonstrate their ignorance of an important topic, while attempting to play to their base. This time, the topic was on the content filtering practices of Facebook, Twitter and Google. Back in May there was actually a whole one day conference in Washington DC on this topic. The Judiciary Committee would have been a lot better served attending that than holding this hearing. I’d recommend not wasting three hours of your life watching this thing, but if you must:
The shortest summary would be that some Republican members of Congress think that these websites censor too much conservative speech, and some Democratic members of Congress think that they don’t censor enough other speech (including hoaxes and conspiracy theories)… and almost no one wants to admit that this is not even remotely an issue that Congress should be concerned about. There’s a narrative that has been picked up by many that insist that social media platforms are unfairly censoring “conservatives.” There is basically zero evidence to support this. Indeed, a thorough analysis of the data back in March by Nieman Labs and Newswhip found that conservative-leaning sites get much, much, much more engagement on Facebook than liberal-leaning sites.
But, never let facts get in the way of a narrative. Since that seems to be the way many hyperpartisan sites (at either end of the spectrum) deal with these things, Congress is helping out. The only bit of sanity, perhaps bizarrely, came from Rep. Ted Lieu, who reminded everyone of the importance of free markets, free speech and the fact that private platforms get to decide how they manage their own services. Considering that Republicans often like to claim the mantle of being the “small, limited government” party who wants the government’s hands out of business regulation, the fact that most of the hearing involved Republicans screaming for regulating internet platforms and a Democrat reminding everyone about the importance of a free market, capitalism and free speech, it really was quite a hearing. Lieu’s remarks were some of the rare moments of sanity during the hearing — including defending Facebook leaving Alex Jones’ conspiracy theories on its site. Let’s start with that high point before we dive into the awfulness. His comments come at about 2 hours and 10 minutes into the video:
… we’re having this ridiculous hearing on the content of speech of private sector companies. It’s stupid because there’s this thing called the First Amendment. We can’t regulate content! The only thing worse than an Alex Jones video is the government trying to tell Google… to prevent people from watching the Alex Jones video. We can’t even do it if we tried. We can’t even do any legislation out of this committee. And we’re having this ridiculous second installment hearing after the first hearing about Diamond and Silk not getting enough likes on Facebook.
He then went on to ask questions “so the American public understands what a dumb hearing this is.” And those questions — again — seemed like the kinds more expected from supposedly “free market” conservatives. Specifically he asked the companies if they were private companies aiming to maximize profits for shareholders. And he wasn’t doing that to show that companies were evil, he was doing that to show that that’s how the free market works. He followed up with this:
I noticed all of you talked about your own internal rules. Because that’s what this should be about. You all get to come up with your own rules. But not because government tells you what to do. Or because government says you have to rule this way or that way. And the whole notion that somehow we should be interfering with these platforms from a legislative, governmental point of view is an anathema to the First Amendment. And really it’s about the marketplace of ideas.
Kudos to Rep. Lieu. This is the kind of speech that you’d normally expect to hear from a “small government” conservative who talks about respecting the Constitution. But, in this case, it’s a Democrat. And it’s shameful that others (on both sides of the aisle) weren’t making the same point. Instead, there was a ton of pure nonsense spewed from the Republicans at the hearing. It’s hard to fathom that the following statements were made by people we’ve actually elected to our legislative body. There were so many dumb statements made that it’s difficult to pick out just a few.
Let’s start with Rep. Steve King, who has made quite a name for himself saying and repeating bigoted nonsense. Starting at about an hour and five minutes in the video, King seemed particularly concerned about traffic to Gateway Pundit, a site famous for trafficking in utter nonsense.
It’s a matter of Congressional record that Gateway Pundit, Mr. Jim Hoft, has introduced information into the record that in the span of time between 2016 and 2018, he saw his Facebook traffic cut by 54%. Could you render an explanation to that?
Um… what? How the hell is it of any concern to Congress whatsoever the traffic a single site gets? And, as we were just discussing recently, traffic to lots of news sites from Facebook has dropped massively as Facebook has de-prioritized news. In that post, we pointed out that Slate was self-reporting a drop in Facebook traffic over that same period of time of 87%. Based on that, why isn’t King asking about Slate’s traffic dropping? Perhaps because Gateway Pundit publishes the kind of nonsense King supports and Slate points out that King is a bigot?
And… isn’t that, again, kind of the point of the First Amendment? To protect news sites from having Congress play favorites?
Incredibly, King then concludes his time by first claiming he’s all for free speech and free enterprise, but wonders about turning social media sites into regulated utilities.
I’m all for freedom of speech and free enterprise and for competition and finding a way that we can have competition itself that does its own regulation, so government doesn’t have to, but if this gets further out of hand, it appears to me that Section 230 needs to be reviewed, and one of the discussions that I’m hearing is ‘what about converting the large behemoth organizations that we’re talking about here into public utilities.’
Are we living in an upside down world? A Democrat is praising the free market, profits and free speech, and a Republican is advocating for limiting free speech and in favor of turning some of the most successful US companies into public utilities? What is even going on here?
Around an hour and 18 minutes, we get our old friend Rep. Louis Gohmert, who has a fairly long and extensive history of making the dumbest statements possible concerning technology issues. And he lived down to his usual reputation in this hearing as well. It starts off by him trying to play down the issue of Russian interference in elections, by claiming (?!?) that the Russians helped Truman get elected, and then claiming that Russians had helped basically every Democratic President get elected in the past 70 years. And then spent a long time trying to complain that the platforms wouldn’t tell him if Chinese or North Korean intelligence services had also used their platforms. Remember, these companies were asked to come and testify specifically about Russian use of their platforms to interfere with the election and Gohmert stepped in with this insane “what about other countries, huh?” argument:
Gohmert: I need to ask each of you. You’ve been asked specifically about Russian use of your platforms. But did you ever find any indication of use of your platform, utilized by the Chinese, North Korea, or any other foreign country intelligence or agency of that country. First, Ms. Bickert?
Bickert/Facebook: I would note, Congressman, that we’re not in North Korea or China. In terms of whether we’ve seen attacks on our services, we do have — we are, of course, a big target — we do have a robust security team that works…
Gohmert: Well, but that’s not my question. It’s just a very direct question. Have you found… You don’t have to be in North Korea to be North Korean Intelligence and use… We have foreign government intelligence agencies IN THIS COUNTRY. So have… It seems to me you were each a little bit vague about “oh yes, we found hundreds” or whatever. I’m asking specifically, were any of those other countries besides Russia that were using your platform inappropriately? It should be a yes or no.
Actually, no, it shouldn’t be a yes or no. That’s a dumb and misleading question for a whole long list of reasons. Of course, lots of other intelligence agencies are using Facebook, because of course they are. But, the entire point of this line of questioning seems to be Gohmert trying to play down Russian use of the platform, which is… odd. Especially after he started out by praising the fact that maybe the Russians might help “our side” get elected going forward.
Bickert: I don’t have the details. I know we work to detect and repel attacks…
Gohmert: I know that. But were any of them foreign entities other than Russia?
Bickert: I can certainly follow up with you on that.
Gohmert: SO YOU DON’T KNOW?!? You sure seemed anxious to answer the Democrats questions about RUSSIA’s influence. And you don’t really know of all the groups that inappropriately used your platform? You don’t know which were Russians and which were other foreign entities?
No, that’s not what she’s saying at all. She’s pretty clearly saying that this hearing was specifically about Russian influence and that’s what she was prepared to testify on. She didn’t say that Facebook can’t tell Russians from other entities, just that the other entities aren’t the ones accused of messing with the election and thus there isn’t that much relevant right now. But that’s quite a deflection attempt by Gohmert.
Let’s move on to Rep. Tom Marino at about an hour and a half into the video. Marino seems to have a fairly bizarre understanding of the law as it concerns defamation. He focuses on the guy from Twitter, Nick Pickles, and starts out by reading a definition of “libel.” Then he asks
Have any of you considered libel? Or do you think you are immune from it?
This is an incredibly stupid question. Twitter is clearly not immune from libel. Marino’s line of questioning is an attempt to attack CDA 230, which provides immunity to Twitter from liability for defamatory statements made by its users. This is an important distinction that Marino conveniently ignores as he continues to bug Pickles.
Pickles: We have clear rules that governs what happens on Twitter. Some of those behaviors are deplorable and we want to remove them immediately… So, terrorist content is one example, where we now detect 95% of the terrorist accounts we remove…
Marino: Okay, I understand that sir. But how about… we in Congress, we put up with it all the time. I know we’re public officials, same with people in the movies… but do you specifically look for and address… republication can be used in a defamation case. Do you look at libel and defamation content?
I don’t even know what that means. Do you look at libel content? What? How does Twitter know if something is libelous? Especially against public officials? How is Twitter supposed to make that judgment when that’s what courts are there to figure out? And, for what it’s worth, Twitter has been known to abide by court rulings on defamatory speech in deciding to take down that content, but Marino seems to be asking if they make an independent judgment outside of the courts of what’s libelous. Which is both crazy and impossible. Pickles makes a valiant effort in response, noting how Twitter focuses on its rules — which is all that it’s required to do — but Marino clearly seems to want to attack CDA 230 and magically make Twitter liable for libelous content on its platform. After Pickles again explains that it focuses on its rules, rather than making judicial rulings that it cannot make, Marino puts on a dumb smirk and makes another dumb statement:
With all due respect, I’ve heard you focus on your rules about 32 times. DO. YOU. LOOK. FOR. LIBEL. OR. DEFAMATION. IN. YOUR. COMPANY’S. OPINION?
You can’t “look for libel or defamation” like that. That’s not how it works. Marino is a lawyer. He should know this. The Facebook and YouTube representatives neatly sidestep Marino’s silly line of questioning by pointing out that when informed of legal rulings determining “illegal” speech, they take it down. Marino doesn’t even seem to notice this very specific distinction and asks “where do you draw the line?”
At an hour and forty minutes, we have everyone’s favorite, Rep. Lamar Smith, author of SOPA back in the day. He spews more utter nonsense claiming conservatives have been more negatively impacted by the moves of these social media companies, and then (bizarrely) argues that Google employees forcing the company not to help surveillance activity is somehow an attack on conservatives. Excuse me? Conservatives don’t support the 4th Amendment any more? Say what? But the real craziness is this line:
Google has also deleted or blocked references to Jesus, Chick-Fil-A and the Catholic religion.
I’m going to call time out here and note [citation needed] on that one, Smith. Google pretty clearly shows me results on all three of those things. I’ve been trying to figure out what the hell he’s referring to, and I’m guessing that Smith — in his usual Smithian nonsensical way — is confusing Google for Facebook, and Facebook’s bad filter that initially blocked a page about “Chick-fil-Appreciation Day,” and some Catholic church pages. The “Jesus” blocking is also Facebook and was in reference to an ad for a Catholic university.
All of these examples were not, as Smith implies, evidence of “liberal bias” on behalf of Facebook, but rather evidence of why it’s so problematic that governments are putting so much pressure on Facebook to magically filter out all of the bad stuff. That’s not possible without making mistakes. And what happens is that you set up guidelines and those guidelines are then handed to people who don’t have nearly enough time to understand the context, and sometimes they make mistakes. It’s not bias. It’s the nature of trying to moderate millions of pieces of content every damn day, because if they don’t, these same idiots in Congress would be screaming at them about how they’re letting the bad content live on. I mean, it’s doubly ridiculous for Smith to use the Jesus example as even the guy who bought the ad, the university’s web communications director, specifically said that he didn’t believe it had anything to do with bias, but was just a bad decision by an algorithm or a low level staffer.
Finally (and there are more, but damn, this post is getting way too long) we get to Rep. Matt Gaetz. At around an hour and 55 minutes into the hearing, he suddenly decides to weigh in that the First Amendment and CDA 230 are somehow in conflict, in another bizarre exchange between Gaetz and Twitter’s Pickles.
Gaetz: Is it your testimony or is it your viewpoint today that Twitter is an interactive computer service pursuant to Section 230 sub c(1).
Pickles: I’m not a lawyer, so I won’t want to speak to that. But as I understand, under Section 230, we are protected by that, yes.
Gaetz: So Section 230 covers you, and that section says “no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another”… is it your contention that Twitter enjoys a First Amendment right under speech, while at the same time enjoying Section 230 rights?
Pickles: Well, I think we’ve discussed the way the First Amendment interacts with our companies. As private companies we enforce our rules, and our rules prohibit a range of activities.
Gaetz: I’m not asking about your rules. I’m asking about whether or not you believe you have First Amendment rights. You either do or you do not.
Pickles: I’d like to follow up on that, as someone who is not a lawyer… I think it’s very important…
Gaetz: Well, you’re the senior public policy official for Twitter before us and you will not answer the question whether or not you believe your company enjoys rights under the First Amendment?
Pickles: Well, I believe we do, but I would like to confirm with colleagues…
Gaetz: So what I want to understand is, if you say “I enjoy rights under the First Amendment” and “I’m covered by Section 230” and Section 230 itself says “no provider shall be considered the speaker” do you see the tension that creates?
There is no tension there. The only tension is between the molecules in Gaetz’s brain that seemed to think this line of nonsensical argument makes any sense at all. There is no conflict. First, yes, it’s obvious that Twitter is clearly protected by both the First Amendment and CDA 230. That’s been established by dozens of court rulings with not a single ruling ever holding otherwise. Second, the “tension” that Gaetz sees is purely a figment of his own misreading of the law. The “no provider shall be considered a speaker” part, read in actual context (as Gaetz did earlier) does not say that platforms are not speakers. It says that they are not considered a speaker of other people’s speech. In fact, this helps protect free speech by enabling internet platforms the ability to host any speech without facing liability for that speech.
That helps protect the First Amendment by ensuring that any liability is on the speaker and not on the tool they use to distribute that speech. But Twitter has its own First Amendment rights to determine what speech it decides to keep on its site — and which speech it decides not to allow. Gaetz then, ridiculous, tries to claim that Pickle’s response to that nonsensical response is somehow in conflict with what Twitter’s lawyers have said in the silly Jared Taylor lawsuit. Gaetz asks Pickles if Twitter could kick someone off the platform “for being a woman or being gay.” Pickles points out that that is not against Twitter’s rules… and Gaetz points out that in the Taylor case, when asked the same question, Twitter’s lawyers stated (1) that Twitter has the right to do so but (2) never would.
Again, both Pickles and Twitter’s lawyers are correct. They do have that right (assuming it’s not a violation of discrimination laws) but of course they wouldn’t do that. Pickles wasn’t denying that. He was pointing out that the hypothetical is silly because that’s not something Twitter would do. Twitter’s lawyers in the case were, correctly, pointing out that it would have the right to do such a nonsensical thing if it chose to do so, while also making it clear it would never do that. Again, that’s not in conflict, but Gaetz acts as if he’s “caught” Twitter in some big admission.
Gaetz falsely then claims that Pickles is misrepresenting Twitter’s position:
Right but it is not in service of transparency if Twitter sends executives to Congress to say one thing — that you would not have the right to engage in that conduct — and then your lawyers in litigation say precisely the opposite.
Except that’s not what happened at all. Pickles and the lawyers agreed. At no point did Pickles say that Twitter did not have “the right” to kick people off its platform for any reason. He just noted that it was not a part of their policy to do so, nor would it ever be. That’s entirely consistent with what Twitter’s lawyers said in the Taylor case. This is Gaetz making a complete ass out of himself in completely misrepresenting the law, the constitution and what Twitter said both in the hearing and in the courthouse.
Seriously, people, we need to elect better Representatives to Congress. This is embarrassing.
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?
We’ve been talking quite a bit about SESTA — the Stop Enabling Sex Traffickers Act — and why it’s so problematic, but with hearings today, I wanted to dig in a bit more closely with the text to explain why it’s so problematic. There are a large number of problems with the bill, so let’s discuss them one by one.
Undermines the incentives to moderate content and to work with law enforcement:
This remains the biggest issue for me: the fact that the bill is clearly counterproductive to its own stated goals. When people talk about CDA 230, they often (mistakenly) only talk about CDA 230(c)(1) — which is the part that says sites are immune from liability. This leads many people to (again, mistakenly) claim that the only thing CDA 230 is good for is absolving platforms from doing any moderation at all. But this actually ignores the equally important part of the same section: CDA 230(c)(2) which explicitly encourages platforms to moderate “objectionable” content, by noting that good faith efforts to moderate and police that content have no impact on your protection from liability in part (1).
In other words: as currently stated, CDA 230 says that you’re encouraged to moderate your platform and takedown bad content, because there’s no increase in legal liability if you do so. Indeed, it’s difficult to find a single internet platform that does zero moderation. Most platforms do quite a bit of moderation, because otherwise their platforms would be overrun by spam. And, if they want people to actually use their platforms, nearly every site (even those like 4chan) tend to do significant moderation out of public pressure to keep certain content off. Yet, under SESTA you now face liability if you are shown to have any “knowledge” of violations of federal sex trafficking laws. But what do they mean by “knowledge”? It’s not at all clear, as it just says “knowledge.” Thus, now if a site, for example, discovers someone using its platform for trafficking and alerts authorities, that’s evidence of “knowledge” and can be used against them both in criminal charges and in civil lawsuits.
In other words, somewhat incredibly, the incentive here is for platforms to stop looking for any illegal activity on their sites, out of fear of creating knowledge which would make them liable. How does that help? Indeed, platforms will be incentivized not to do any moderation at all, and that will create a mess on many sites.
The vague “knowledge” standard will be abused:
This is sort of a corollary to the first point. The problematic language in the bill is this:
The term ?participation in a venture? means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation…
But what do they mean by “knowing conduct”? Who the hell knows. We already know that this is going to get litigated probably for decades in court. We have some similar problems in the DMCA’s safe harbors, where there have been legal battles going on many years over whether the standard is “general knowledge” v. “specific knowledge” and what is meant by “red flag knowledge.” And in SESTA the language is less clear. When people have attempted to pin down SESTA’s sponsors on what the standard is for knowledge, they’ve received wildly varying answers, which just means there is no standard, and we’ll be talking about lawsuits for probably decades before it’s established what is meant by “knowledge.” For companies, again, the best way to deal with this is to not even bother doing any moderation of your platform whatsoever, so you can avoid any claim of knowledge. That doesn’t help at all.
The even vaguer “facilitation” language will be massively abused:
In that same definition of “participation in a venture” what may be even more problematic than the vague “knowledge” standard, is the vaguer claim that an entity “by any means, that assists, supports or facilitates a violation…” of sex trafficking laws, meets the standard of “participation in a venture.” All three of those terms have potential problems. Assisting sounds like it requires proactive action — but how do you define it here. Is correcting typos “assisting”? Is having an automated system suggesting keywords “assisting”? Is autocompleting search “assisting”? Because lots of sites do things like that, and it doesn’t give them any actual knowledge of legal violations. How about “supporting”? Again, perfectly benign activities can be seen as “supporting” criminal behavior without the platform being aware of it. Maybe certain features are used in a way that can be seen as supporting. We’ve pointed out that Airbnb could be a target under SESTA if someone uses an Airbnb for sex trafficking. Would the fact that Airbnb handles payment and reviews be seen as “supporting”?
But the broadest of all is the term “facilitating.” That covers basically anything. That’s flat out saying “blame the tool for how it’s used.” Almost any service online can be used to “facilitate” sex trafficking in the hands of sex traffickers. I already discussed Airbnb above, but what about if someone uses Dropbox to host sex trafficking flyers? Or what if a sex trafficker creates advertisements in Google Docs? Or what if a pimp creates a blog on WordPress? What if they use Skype for phone calls? What if they use Stripe or Square for payments? All of those things can be facilitation under this law, and the companies would have no actual knowledge of what’s going on, but would face not only criminal liability but the ability of victims to sue them rather than the actual traffickers.
This is the core problem: this bill targets the tools rather than the law breakers.
Punching a hole in CDA 230 will be abused:
This is one that seems to confuse people who don’t spend much time looking at intermediary liability protections, how they work and how they’ll be abused. It’s completely normal for people in that situation to not recognize how widely intermediary liability is used to stifle perfectly legitimate speech and activity. However, we know damn well from looking at the DMCA, in particular, that when you set up a process by which there might be liability on a platform, it’s regularly abused by people angry about content online to demand censorship. Indeed, we’ve seen people regularly admit that if they see content they dislike, even if there’s no legitimate copyright claim, they’ll “DMCA it” to get it taken down.
Here, the potential problems are much, much worse. Because at least within the DMCA context, you have relatively limited damages (compared to SESTA at least — the monetary damages in the DMCA can add up quickly, but at least its only monetary and it’s limited to a ceiling of $150,000 per work infringed). With SESTA, criminal penalties are much more stringent (obviously) which will create massive incentives for platforms to cave immediately, rather than face the risk of criminal prosecution. Similarly, the civil penalties show no upper bound under the law — meaning the potential monetary penalty may be significantly higher.
The chilling effects of criminal charges:
Combine all of this and you create massive chilling effects for any online platforms — big or small. I already explained earlier why the new incentives will not be to help law enforcement or to moderate content at all, for fear of creating “knowledge” but it’s even worse than that. Because, for many platforms, the massive potential liability from SESTA will mean they don’t create any kind of platform at all. A comment feature on a website would become a huge liability. Any service that might conceivably be used by anyone to “facilitate” sex trafficking creates the potential for serious criminal and civil liability, which should be of great concern. It would likely lead to many platforms not being created at all, just because of the potential liability. For ones that already exist, some may shutter, and others may greatly curtail what the platform allows.
State Attorneys General have a terrible track record on these issues:
In response to the previous point, some may point out (correctly!) that the existing federal law already exempts federal criminal charges — meaning that the DOJ can go after platforms if it finds that they’re actively participating in sex trafficking. But, for as much as we rag on the DOJ, they tend not to be in the business of going after platforms just for the headlines. State AGs, on the other hand, have a fairly long history of doing exactly that — including directly at the behest of companies looking to strangle competitors.
Back in 2010 we wrote about a fairly stunning and eye-opening account by Topix CEO Chris Tolles about what happened when a group of State Attorneys General decided that Topix was behaving badly. Despite the fact they had no legal basis for doing so, they completely ran Topix through the ringer, because it got them good headlines. Here’s just a snippet:
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.
And, remember, this was done when the AGs had no legal leverage against Topix. Imagine what they would do if they could hold the threat of criminal and civil penalties over the company?
Similarly, remember how leaked Sony emails revealed that the MPAA deliberately set up Mississippi Attorney General Jim Hood with the plan to attack Google (with the letter Hood sent actually being written by MPAA outside lawyers?). If you don’t recall, Hood used claims that, because he was able to find illegal stuff via Google, it meant he could go on a total fishing expedition into how it handled much of its business.
In the Sony leak, it was revealed that the MPAA viewed a NY Times article about the value of lobbying state AGs as a sort of playbook to cultivate “anti-Google” Attorneys General, who it could then use to target and take down companies the MPAA didn’t like (remember, this was what the MPAA referred to, unsubtly, as “Project Goliath”).
Do we really want to empower that same group of AGs with the ability to drag down lots of other platforms with crazy fishing expeditions, just because some angry Hollywood (or other) companies say so?
Opening up civil lawsuits will be abused over and over again:
One of the big problems with SESTA is that it will open up internet companies to getting sued a lot. We already see a bunch of cases every year where people who are upset about certain content online, target lawsuits at those sites just out of anger. The lawsuits tend to get thrown out, thanks to CDA 230, but lawyers keep trying creative ideas to get around CDA 230, adding in all sorts of frivolous attempts. So, for example, after the decision in the Roommates case — in which Roommates.com got dinged for activity not protected by CDA 230 (specifically its own actions that violated fair housing laws) — lots of people cite the Roommates case as an example of why their own argument isn’t killed off by CDA 230.
In other words, if you give private litigants a small loophole to get around CDA 230, they try to jump in and expand it to cover everything. So if SESTA becomes law, you can expect lots of these lawsuits where people will go to great lengths to argue just about any lawsuit is not protected by 230, because of supposed sex trafficking occuring via the site.
Small companies will be hurt most of all:
There’s this weird talking point making the rounds, that the only one really resisting SESTA is Google. We’ve discussed a few times why this is wrong, but let’s face it: of all the companies out there, Google is probably best positioned (along with Facebook) to weather any of this. Both Google and Facebook are used to massive moderation on their platforms. Both companies have built very expensive tools for moderating and filtering content, and both have built strong relationships with politicians and law enforcement. That’s not true for just about everyone else. That means, SESTA would do the most damage to smaller companies and startups, who simply cannot invest the resources to deal with constant monitoring and/or threats from how people use their platform.
Given all of these reasons, it’s immensely troubling that SESTA supporters keep running around insisting that the bill is narrowly tailored and won’t really impact many sites at all. It suggests either a willful blindness to the actual way the internet works (and how people abuse these systems for censorship) or a fairly scary ignorance level, with little interest in getting educated.
