from the who-would-have-guessed dept
During the run up to the passage of FOSTA, we were told two key things: (1) the law was absolutely necessary to stop sex trafficking websites like Backpage, and (2) that there was no way that the law would be abused to go after perfectly innocent websites. It’s pretty easy to show that both of these claims turned out to be utter bullshit. The first one was especially easy, seeing as the Feds seized the site and arrested its founders a week before FOSTA became law. The second has taken somewhat longer to show, in part because for a long while no one actually seemed to be making use of FOSTA. For a law that we were told was absolutely necessary and that any delay in passing it would mean lives put at risk, it has been notable just how few actual lawsuits have been filed under FOSTA in the 18 months or so since it became law. State attorneys general, who pushed strongly for it, claiming they needed this hole in Section 230 to go after bad actor websites have still never used the law. Not once.
However, a few civil suits have just started to show up, as highlighted in a guest post at Eric Goldman’s blog by FOSTA expert Alex Yelderman. She first points to two nearly identical lawsuits filed in state courts (one in Washington, one in California) against Craigslist and a bunch of hotels. Craigslist has sought to remove both to federal court as of early December. Both cases push, as Yelderman notes, “radical theories of liability” aimed at Craigslist. They also target activities that happened prior to FOSTA becoming law (as you may recall, Craigslist shut down its “erotic services” section all the way back in 2010, and then shut down all dating after FOSTA became law, noting that the liability risk was just too much).
That hasn’t stopped the company from getting sued under the law, though, with it claiming that just the mere fact that Craigslist had such a section a decade ago proves that it was engaged in sex trafficking under FOSTA. As Yelderman points out, the fact that FOSTA is apparently retroactive and can reach back to such things, will almost certainly be found unconstitutional. As you may recall, even the DOJ told Congress this part was unconstitutional.
Even beyond that aspect, though, the claims in the lawsuit are crazy. They assume that FOSTA removed the requirement for knowledge on the part of intermediaries like Craigslist, even though supporters of the law insisted that wasn’t the case. Indeed, a key part of the DOJ’s defense of FOSTA in the Woodhull case that challenged the law (and which the district court rejected), was that FOSTA made no such change. As Yelderman explains:
The plaintiffs do not allege that craigslist knew anything about them specifically being trafficked — in fact, they count themselves among “thousands of victims” — but rather claim that the website was aware “that its erotic services section was well known to commercial sex customers throughout the United States as a place to easily locate victims for [SIC] as commodities, unpunished, anonymous, sexual abuse of children” and that once craigslist had been put “on notice of the human sex trafficking” (“from numerous sources, including but not limited to; lawsuits, government action, public outcry, news media, victims, activities and employee observation”), its ongoing operation “amounted to a venture with sex traffickers to efficiently market victims such as [the] Plaintiff.” (emphasis added)
This is a radical theory of liability, and raises the question: did FOSTA’s definition of “participation in a venture,” codified in 18 U.S.C. § 1591(e)(4), eliminate the requirement that federal trafficking defendants (including, now, intermediaries) have actual knowledge of trafficking? The government in Woodhull assured that court that “FOSTA changed nothing about Section 1591’s scienter standard,” and that a plaintiff “cannot credibly fear criminal or civil liability [if] it has no specific knowledge about the content of any of the material it obtains” or “be prosecuted under FOSTA [if] it has no knowledge about any individual webpage nor criminal intent.” (Defendants’ reply and supplement at 7, 8, emphasis added)). But even if craigslist ends up prevailing, the fact that the cases were filed at all sounds the alarm on FOSTA’s reach, and shows the Woodhull plaintiffs’ fear to be entirely reasonable
The other case that Yelderman highlights deserves even more scrutiny. It was filed against Mailchimp back in November, and I had meant to write it up at the time, but did not get the chance. It was filed by the same lawyer who has been filing a bunch of similar cases, including the nonsense cases against Salesforce, because Backpage used Salesforce. The lawyer behind those cases, Annie McAdams, even got herself quite a profile in the NY Times, where she meets the NY Times reporter at “her favorite Tex-Mex joint in Houston” and proceeds to brag that “she had acquired the restaurant’s secret margarita recipe in legal discovery when she sued the place for serving a man too much alcohol.”
Bragging about abusing the law and the courts for personal gain in a NY Times profile says something about you. For what it’s worth, McAdams’ Twitter account currently has exactly two tweets (it’s possible she’s deleted others), with the first one being her getting angry at me for referring to her lawsuits as “nuisance suits.” Quite a person there.
Either way, the claims against Mailchimp are absolutely the kinds of things we all warned would happen when FOSTA was being debated, and which FOSTA supporters insisted would never happen. The crux of the lawsuit is that when a Backpage clone, called YesBackpage, tried to startup after Backpage was seized, the site used Mailchimp for emails, and thus that makes it liable under FOSTA.
YesBackpage used Mail Chimp technology to enable efficient and
targeted communication between itself and sex traffickers.
MailChimp was thereby an active party in the process of soliciting and
fulfilling acts of sex trafficking.
MailChimp’s integrated communications software was used together to
track postings of illegal advertisements, encourage greater use of these
advertisements by traffickers, and effectively promote sex trafficking on an
MailChimp was the key technology used to unify the various digital
components of the sex trafficking transaction, including the use of email to increase
more advertising, more consumption of those ads, and thereby facilitate more sex
Even if this lawsuit gets tossed out (as it should), the theory behind it is scary and worrisome. As Yelderman writes:
This case alleges that MailChimp — a marketing platform — “made available its marketing resources and expertise” to a Backpage copycat website and that “MailChimp’s marketing relationship with YesBackpage makes it responsible for its natural consequences — the sex trafficking of Jane Doe.” (Doe v. MailChimp complaint at 12). This view of “natural consequences” is breathtaking. Once MailChimp became “[a]rmed with knowledge of activity occurring through YesBackpage,” any services performed for the website would presumably constitute “participation in a [sex trafficking] venture.” There is no limiting factor in sight.
When sex trafficking is somehow construed as the “natural consequence” of a virtually any action, virtually no person or entity is safe from the threat of liability.
These are the kinds of things many of us worried about (and warned Congress about) in the run-up to SESTA/FOSTA, and we were told we were crazy. Yet, looking at the actual lawsuits filed under FOSTA seems to prove we were 100% correct.
What’s even more troubling, through, is that they also show just how wrong the district court judge in the Woodhull case was to dismiss that case. The judge dismissed that case insisting that FOSTA included clear language that barred such widespread interpretations:
… plaintiffs ignore key textual indications that make clear that FOSTA targets specific acts of illegal prostitution not the abstract topic of prostitution or sex work.
That’s certainly not how the lawyers who filed the lawsuits above see it. At the very least, one hopes that the DC Appeals court recognizes this in deciding the Woodhull appeal. If not, then hopefully one of these or related cases makes its way up to an appeals court and gets FOSTA itself tossed for any of the variety of problems the law has created for speech online.
Filed Under: cda 230, fosta, intermediary liability, section 230, sex trafficking
Companies: backpage, craigslist, facebook, mailchimp, salesforce