Are Tech Firms Liable For What Their Users Post? (mercurynews.com)

Thursday Texas police officers arrested the CEO of Backpage.com, a web site allowing escorts to post classified ads, on a felony charge accusing him of pimping. Slashdot reader whoever57 writes: It is likely that the charges will not stick because of section 230 of the Communications Decency Act, under which publishers are protected from liability for the postings of their users. However, this could just be the first shot in the battle to weaken section 230. This could endanger other sites, such as Craigslist, and ultimately, any site with user-written content.
Backpage calls the prosecution "frivolous," arguing that the site's classified ads for escorts are protected by the First Amendment. But a law professor at the University of Santa Clara suggests prosecutors may argue that the site had been "optimized to facilitate online prostitution ads," establishing some level of complicity.

Comments

What about Banks

[Herkum01]

Well they have been going after the Backpage for 10 years, so I guess at this stage they are just throwing it against the wall and hoping for a judge that will let it stick.

Besides considering how complacent they have been with banks and money laundering drug money and tax evasion, it seems that this is just low hanging fruit by comparison.

What's in the mind

[no-body]

of people pulling this off?
One has to wonder....

needs recognition
feels inferior and has to compensate trying to fill this void
stubborn frame of mind
shine before his/her peer group, partner
neural concept how things have to be ... ???

Re:What's in the mind

[Sir Foxx]

Control. If they can get this to stick then its a short walk to be able to start taking on and controlling opinion, thoughts, etc. This is progression of a Republic descending into Fascism(from Capitalism then into Crony Capitalism) and then complete Totalitarianism. Power is the ultimate high and as any one who knows about that, knows that over time, with no control or oversight, you have to keep upping the ante to get the high you're looking for. In this case, it's the destruction of our freedoms. Scary times ahead indeed.

Re:What's in the mind

[execthis]

The feminazi bitch Harris who is the AG from California pulling this off is likely to be elected to the US Senate. Ttterly despicable how far American politics have descended. Democracy is pretty much dead in America.

Re:What's in the mind

[funwithBSD]

The problem with Democracy is that you get the Government you deserve.

This is why I hate Jury trials

[rsilvergun]

this won't be decided as a matter of law, but a matter of feelings.

Re:This is why I hate Jury trials

[Frank Burly]

This would likely work to the CEO's advantage because most people really don't care about prostitution unless it is a streetwalker outside Chuckie Cheese.

There is an ooooold case where a guy who ran an answering service was convicted of pimping, and the appeals court overturned the conviction because there was nothing about his business that specifically turned on whether the phone calls were for legal or illegal purposes. This CEO has the same defense: I think of Backpage as being geared toward adult entertainment—but adult entertainment and prostitution are not synonymous so the DA will have quite a job to prove intent.

Re:This is why I hate Jury trials

[Frank Burly]

OK, editing ads does it!

Re:This is why I hate Jury trials

[Solandri]

Jury trials are a fail-safe against the government becoming so corrupt that it starts passing and enforcing laws contradictory to the wishes and best interests of the citizens as a whole. Like the Second Amendment, the value of jury trials is not obvious when things are working more or less fine - in fact as you express it may actually make things worse during these times. But when the sh!t hits the fan, it's one last way for the citizens to reassert dominance over an out-of-control government.

That's why you should make sure everyone you know knows about jury nullifcation. Judges hate it and go out their way to trick jurors into thinking they don't have that right (they instruct the jury to decide based on the facts of the case and the law as written). But the right of jury nullification was deliberately placed in our Constitution as one last bulwark against an overreaching government.

Re:This is why I hate Jury trials

[Zontar The Mindless]

Juries have that *power*, yes. Whether this constitutes a *right* to do so is a matter of debate. Many regard it as a bug in the Double Jeopardy Clause.

Moreover, a judge *definitely* has the right to remove any juror who he has good reason to believe will vote to disregard the law.

At least this is what my attorney told me some years ago.

Re:This is why I hate Jury trials

[ShanghaiBill]

This would likely work to the CEO's advantage because most people really don't care about prostitution unless it is a streetwalker outside Chuckie Cheese.

I don't think this is true. There is a gender disparity in views about prostitution. Men tend to be more tolerant. Women tend to be overwhelmingly opposed. Conservative women are usually opposed because it is "immoral". Liberal women are opposed because they consider it degrading to women. From a purely utilitarian view, it makes sense for women to oppose legal prostitution, since an open and legal market for sex lowers their bargaining position in traditional relationships and marriages.

Also, while many people are tolerant of prostitution, the AG is trying to label this as "human trafficking" despite a total lack of evidence. Part of this may be a ploy to get "anti-trafficking" money from the federal government, but it might also help sway a jury.

There is an ooooold case where a guy who ran an answering service was convicted of pimping, and the appeals court overturned the conviction

So the jury voted for conviction, but some judges threw it out on a technicality? That does not seem to support your assertion that people don't care.

Re: This is why I hate Jury trials

[Anonymous Coward]

I thought everyone knew that the girl who shows up isn't the one in the picture

Re:This is why I hate Jury trials

[Frank Burly]

Well facts is facts and that is all a jury is supposed to decide—I didn't mean to imply that a juror who didn't care about prostitution would vote Not Guilty because of it. But jurors are regular people and there is a sliding scale when it comes to the evidence required for things they care about and things they don't. There is actually less documentary evidence in the Lauria case than I would have thought, supporting your skepticism—but the case is 50 years old.... Results may vary in Texas. http://www.leagle.com/decision...

Re:This is why I hate Jury trials

[Frank Burly]

Ooops. He wasn't convicted, he was trying to get the case thrown out and lost the first time.

Re:This is why I hate Jury trials

[rtb61]

Out of curiosity, I dug a bit deeper and those ads only offer the companionship of the person, quite often the ads distort the nature of the person even with the accompanying photographs but they most definitely do not state what services will be provided. Plus the ads all point to direct contacts and not contacts solely via back page and back page are running a full set of alternate ads. The courts in this case would have to prove back page reviewed the ads and new their contents, passed them and demanded a return on all external transactions.

The posting rules a pretty explicit
I will not post obscene or lewd and lascivious graphics or photographs which depict genitalia, actual or simulated sexual acts or naked images
I will not post any solicitation directly or in "coded" fashion for any illegal service, including exchanging sexual favors for money or other valuable consideration.

So seems to be a pretty frivolous case likely hasn't paid the demanded protection money and is being harassed as a result.

Re:This is why I hate Jury trials

[Frank Burly]

According to the Arstechnica article, which I have not read, the company would edit ads to make sure they complied with the law/posting rules. This suggests that there was a sort of "coded" language which was in use. For example, in the context of Backpage "companionship" might be understood to mean sex. The prosecution has to prove all this beyond a reasonable doubt, but it doesn't look frivolous or like a shakedown. This is an ostensibly legit businessman with the resources to defend himself so a conspiracy/shakedown would need to include an cut-in too people to make the crime worthwhile (purely my guesstimate, of course).

Re:Shouldn't involve the internet

[Rockoon]

Nobody is responsible for what anybody else does.

Translation: Men shouldnt be responsible for the children that women choose to have.

Careful what you wish for.

Tech Firms?

[Mr D from 63]

Since when is any company with a website considered a "tech firm"?

Re:Tech Firms?

[Anonymous Coward]

In all fairness - it's not just a company with a website. They website IS their entire business. It doesn't supplement a brick and mortar system, nor does it even have a warehouse from which to ship products. It's effectively a social networking site.

Re:Tech Firms?

[No Longer an AC]

According to Wikipedia, this is only true since 2012 when Village Voice Media separated their newspaper company, which then consisted of eleven weekly alternative newspapers and their affiliated web properties, from Backpage, leaving Backpage in control of shareholders Mike Lacey and Jim Larkin.

It's been over 10 years since I picked up one of their free newspapers, but it used to literally be the back page.

Re:Shouldn't involve the internet

[eis2718bob]

You see, a pimp's webpage is very different from that of a square.

Covered this already

[Anonymous Coward]

This already made the rounds at Ars. The current spat has nothing to do with Section 230. The warrant states that BackPages was complicit in editing ads to hide their illegality befor posting. That makes them complicit. Section 230 won't protect you if you edit the stuff your users post.

Anyway, the formal charges are here. Pimping is defied in teh CA Penal Code as profiting off of someone else's prostitution. I'd like to note that further reading of the Ars thread brings to light that things like Overt Act 9 are not nebulous "some child", but rather, that they have children who are testifying.

tl;dr: this is about section 230. This is about a company taking an active role in prostitution and sex trafficking.

Re:Covered this already

[OzPeter]

^^Mod up^^

Re:Covered this already

[Zontar The Mindless]

Was coming here to say exactly the same (also read the Ars story).

Re:Covered this already

[retchdog]

well, yes, but it doesn't really matter. truth is the first casualty in a war, and that goes double for "culture wars".

with "news" like this, there's nothing to do but just sit back and enjoy the frothing. it's kind of like watching a group therapy session, except pseudonymous and not very therapeutic.

Re:Covered this already

[Todd Knarr]

Was the "editing to conceal evidence of illegality" perchance what agent Fitchner described in this statement?

In May 2015, I created another BACKPAGE "Escort" ad with the goal of trying to post an ad containing sexual verbiage indicative of a prostitution ad. I used the words "cum" and "quickie" in the ad, but when I tried to post it, I received a message that told me those words were "forbidden in this category." I had to change the words to "come" and "quick session" in order for the ad to be accepted.

If that's what you're talking about, it's rather a strained reading to interpret rejecting ads that contain language indicating they might be for prostitution with editing those ads.

Re:Covered this already

[Zontar The Mindless]

Don't be an idiot. Those companies are not accused of helping customers doctor calls concerning underage prostitution so they'd sound innocuous. Which is what Backpage are accused of doing with their customers' ads.

Re:Covered this already

[funwithBSD]

By RICO standards, probably.

And the Internet too, but they can't figure out who to prosecute.

Re:Shouldn't involve the internet

[Anonymous Coward]

Nobody is responsible for what anybody else does.

Translation: Men shouldnt be responsible for the children that women choose to have.
Careful what you wish for.

There are cases where a woman have chosen to get children without the consent of the man. The case were a woman gave a man a blowjob and then saved the semen and impregnated herself with comes to mind.
It doesn't seem fair to me that men should be responsible for children that they didn't want to have in the first place.

What does the user agreement say?

[pesho]

If there is a clause in the user agreement that they own all user generated content, then these are their posts and they should be liable.

Re:What does the user agreement say?

[Lunix Nutcase]

Except Backpage was editing the ads before posting them not simply posting them as is. It does change the facts of the case and their liability. Strange that the summary omitted such an important deal.

Re:What does the user agreement say?

[Solandri]

That particular clause is in there to prevent a situation where a user posts something on a public forum, then later changes their mind and uses copyright law to force the forum to delete their post. It's not a problem if one or even a handful of users does it. But when you start to get up to hundreds or even thousands of users doing it, it turns the forum's historical archives into swiss cheese, not to mention the extra cost and manpower needed to remove the posts from things like backup tapes.

The wiser companies phrase their EULAs so that the user gives them an irrevokable license to "publish" their posts for the purpose of providing the service (the forum). The ones with overzealous lawyers or nefarious intent phrased it as the user signing over all copyright to their post to the company. I'm not even sure that's legally valid since there's no consideration - something of value like money or goods given in exchange for giving up the copyright.

Re:Shouldn't involve the internet

[Zontar The Mindless]

There are cases where a woman have chosen to get children without the consent of the man. The case were a woman gave a man a blowjob and then saved the semen and impregnated herself with comes to mind.

Please provide a cite that isn't a film title.

Only if complicit

[goodmanj]

"Are [publishers] liable for what their users print?" No, unless they knowingly help their users commit a crime. Which Backpage allegedly did.

Re:Only if complicit

[execthis]

Bullshit. They absolutely did not. Its absurd to think that any employee of Backpage went to work one day and deliberately intended to allow, create, or promote an ad for an underage prostitute.

By the way, illegals routinely pimp their own kids out. Mothers (older brothers, etc.) will literally accompany their kids on "dates". An attractive girl born into an illegal family is considered a family asset and the parents pimping the kids out is considered training and helping the kids.

I don't see Harris cracking down on illegals.

Re:Only if complicit

[Lunix Nutcase]

If that were true why were they editing ads before posting them?

Re:Only if complicit

[execthis]

They probably have staff who are paid to edit ads to remove explicit pictures which is a standard thing on many websites. Its disingenuous to equate that with deliberately pimping out kids.

Re:Only if complicit

[Todd Knarr]

Would that "editing" be related to this statement by agent Fitchtner?

In May 2015, I created another BACKPAGE "Escort" ad with the goal of trying to post an ad containing sexual verbiage indicative of a prostitution ad. I used the words "cum" and "quickie" in the ad, but when I tried to post it, I received a message that told me those words were "forbidden in this category." I had to change the words to "come" and "quick session" in order for the ad to be accepted.

The statement that indicates that Backpage tries to reject ads containing language indicating they involve prostitution? That one isn't going to fly, Backpage will simply point to precedent that Section 230 explicitly bars holding them liable for the content just because of such blocking. They're also going to point to a long string of demands from law-enforcement agencies that sites do just such blocking.

Re:Shouldn't involve the internet

[fustakrakich]

Would make a good seahorse zombie flick... they carry the embryo in their mouths.

Re:Shouldn't involve the internet

[Anonymous Coward]

Translation: Men shouldnt be responsible for the children that women choose to have.

Playing devil's advocate: why should they be? Assuming both man and woman consent to a sexual relationship, and upon finding the woman has become pregnant, the man wants to abort and the woman wants to keep the baby, why should the man be held responsible?

It's the woman's body, so it's ultimately her choice to keep the baby or not - I won't argue that. However, why is she protected from the consequences of her choice? Are we saying women are incapable of making their own decisions, so we must protect them (in some cases, through force of law: i.e. child support) from those choices?

Re:Shouldn't involve the internet

[Anonymous Coward]

Here's one: http://www.nbcnews.com/id/7024930/

Why is prostitution outlawed in the US, anyway?

[ffkom]

There are plenty of more dangerous, more arduous, more humiliating jobs out there - even ones that require touching the bodies and excretions of other people. And most of them are paid much lower than prostitution. I for one am happy that where I live, prostitution is a legal job, involving taxation and social security insurance like every other job.

Re:Why is prostitution outlawed in the US, anyway?

[funwithBSD]

Dunno, why is gun ownership a matter of public record?

Presumably, if one of the prostitutes comes down with an STD, they could contact all the previous customers.

Mu ?

[KingBenny]

actually ... NO ! to say they are is to say goodspeech is a good thing and you get to regulate and dictate what others say and the leaders of the free worlds very constitution would oppose that in a real world

Re:Shouldn't involve the internet

[Zontar The Mindless]

That's disgusting--which means you'd likely have a blockbuster on your hands. Go for it.

Re:Shouldn't involve the internet

[Zontar The Mindless]

Fair enough. Ta for the link.

Re:So you should be liable?

[Zontar The Mindless]

I don't believe that the kids posted their own ads, but rather it was their pimps or "agencies" who did.

Here is a better takedown of the case

[Cytotoxic]

Elizabeth Nolan Brown gives her (derisive) take on the prosecution of the Backpage CEO, filled with links to further details on the case.

Among the allegations:

Backpage removed an ad suspected of offering prostitution when it was reported and then blocked it from being re-posted.

and

Backpage uses automated filtering to try and prevent people from posting about illegal activity.

Nolan-Brown writes about prosecutors using Backpage's cooperation with law enforcement to prevent illegal activity as proof that Backpage is a criminal organization:

"Backpage acknowledges that pimps routinely pay Backpage for ads trafficking children for sex," Fichtner states. And how does he back up this outrageous claim? By stating that Backpage has cooperated with law-enforcement and the National Center for Missing and Exploited Children in sex trafficking investigations—which does not really sound like an "acknowledgment" of wrongdoing from Backpage at all. Still, Fichtner offers no further evidence to support either the claim that "pimps routinely pay Backpage for ads trafficking children for sex" or that Backpage acknowledges any such thing.

Re:Yes

[PPH]

So, AT&T, Comcast, Backpage's web hosting company, etc?

Re:Yes, They Are

[PPH]

And you can't rent your billboard out to the local drug dealer.

Yes you can. He just can't advertise drugs (or anything illegal*) on it. And if he does, all you have to do is to take his ad down following notification of the violation.

*WA State here. You can in fact rent your billboard out to the local drug dealer.

Re:Shouldn't involve the internet

[reboot246]

And sometimes more, if you're lucky!

Re: Why is prostitution outlawed in the US, anyway

[Zero__Kelvin]

I believe you can get one of those on Backpage :-)

A big thank you to the Texas Attorney General

[Macdude]

I wanted to send a big thank you to the Texas Attorney General, I hadn't heard of this site before.

Actually

[MitchDev]

There is no reason for prostitution to be illegal in the first place.

This is just another assault by the totalitarian scumbags....

Re:Actually

[david_thornley]

There are reasons for prostitution to be illegal. I happen to disagree with them, and I really don't like having victimless crimes, and it isn't clear to me that in practice outlawing prostitution delivers a better outcome, and I see ways in which outlawing prostitution creates more problems, but the reasons exist.

Women are likely to be pushed into prostitution and exploited by pimps (editorial comment: this is easier to deal with if prostitution is legal). It can spread sexually transmitted diseases (same editorial comment). It forces the practitioners to be promiscuous (editorial comment: I don't care). It can disrupt marriages (editorial comment: not healthy ones). It can give men bad sexual habits and assumptions (editorial comment: maybe, but outlawing prostitution doesn't seem to cut into it that much). There are circumstances where, to receive certain assistance, someone might be required to take any available job, and it's undesirable to require people to be prostitutes (editorial comment: I agree, but there have to be better ways to deal with this). It leads people into illegal activities (editorial comment: duh).

Liability for the Merchants of . . .

[PMuse]

Why is it that so many Americans are convinced that the merchant who sells a gun is not liable for what the purchaser does with it? (2nd amendment over all! yada yada . . .)

But that these same people keep claiming that the merchant who sells a message is liable for what the purchaser says in it? (1st amendment! but not really. yada yada . . .)

Apparently, they have realized that the pen is mightier than the sword and taken the wrong lesson from it: they have decided that everyone should have weapons and no one should have ideas.

Re:Shouldn't involve the internet

[I75BJC]

This sorry is "Common Knowledge". In the Research art, it therefore needs no citation. But will the New York Times be acceptable for you?

Re:Shouldn't involve the internet

[Zontar The Mindless]

I expressed doubt, having never heard of such a thing before, other than as a plot element in a couple of straight-to-video movies.

Someone supplied a story from what appears to be a reputable source.

I read it, and replied, saying, "Thanks for the info".

That was 2 days ago. Have you finished reading the thread yet?

Re:Shouldn't involve the internet

[swamp_ig]

> we must protect them (in some cases, through force of law: i.e. child support) from those choices?

Yes, but this is clearly worse for the child involved. Child support is not about protecting the rights of women, it's about ensuring the best outcomes for the children.