The anti-sex work brigade told us the draconian FOSTA-SESTA is needed to protect victims of sex trafficking. However, an order issued March 29 by United States District Judge Leo T. Sorokin allows a trafficking case to proceed against Backpage under existing law.
As Eric Goldman writes at his Technology and Marketing Law Blog:
SESTA/FOSTA opponents told Congress that the court’s ruling on Backpage’s motion to dismiss was imminent–and Congress should wait for it because it would provide valuable information about the post-Senate report status of Backpage’s eligibility for Section 230 [of the Communications Decency Act].
Congress didn’t wait. Instead, it ill-advisedly combined two bills into a single legislative monstrosity, the Worst of Both Worlds FOSTA.
In March 2016, the United States First Circuit affirmed the District Court’s decision to dismiss three claims against Backpage.com alleging violations of the federal “Trafficking Victims Protection Reauthorization Act” (TVPRA) and the “Massachusetts Anti-Human Trafficking Act of 2010” (MATA), in large part because the Communications Decency Act — the law in which the backers of FOSTA/SESTA claimed there was a legal loophole — commands that:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Following the First Circuit ruling, the plaintiffs sued again.
In Thursday’s ruling, the court decided that “the CDA poses no bar to Jane Doe No. 3’s claim” where there exists “a modicum of support for the notion that Backpage…changed an ad.”
Prior to this ruling, there existed ample evidence that Section 230 does not guarantee protection for Backpage. For example, the Department of Justice took down two similar sites using existing law; and a California court denied Backpage Section 230 protection in a criminal prosecution.
In other words, if claims can proceed against Backpage.com under existing law, FOSTA-SESTA is a scam.
As Eric Goldman writes:
Backpage has been the poster child for Section 230’s purported failings. The argument goes (1) Backpage facilitates sex trafficking, (2) Section 230 protects Backpage, so (3) Section 230 is evil. That was the core message of the so-called “documentary” I Am Jane Doe; and Congress has spent the last year working on SESTA and FOSTA predicated on this argument.
But…what if the argument were wrong, and Section 230 didn’t protect Backpage’s role in sex trafficking? If true, SESTA/FOSTA would be nonsensical.
Or worse, diabolical.
As Thursday’s ruling shows, the argument WAS wrong: