The Bullshit Rewriting Of History To Claim FOSTA Took Down Backpage

Legal Issues

from the not-how-it-happened dept

I was afraid that this was going to happen. If you don’t recall, the official “reason” for why we needed FOSTA (originally SESTA) was that it was necessary to “take down Backpage.” In the original announcement about the bill by Senator Portman, his press release quoted 20 Senators, and 11 of them mentioned Backpage.com as the reason for the bill. Not one of them seemed to mention that Backpage had already shut down its adult section months earlier. And, over the months of debate concerning FOSTA/SESTA, we noted that there was nothing in the existing law preventing federal law enforcement officials from taking down Backpage if it were actually violating the law.

And, indeed, before FOSTA was even signed into law, the DOJ seized the website and arrested its founders. Incredibly, even though Backpage was shut down before FOSTA was law, some of the bill’s backers tried to credit the bill with taking down the site. The worst was Rep. Mimi Walters, who directly tried to take credit for FOSTA taking down Backpage (even though FOSTA wasn’t even signed into law at the time she took credit for it).

Since then, I’ve been concerned that there will be an attempt to rewrite history to pretend that FOSTA was, in fact, responsible for the criminal prosecution of Backpage. And, it appears that is coming true. Last week, Buzzfeed ran a worth-reading profile of lawyer Marc Randazza, whom we’ve talked about plenty on this site (sometimes agreeing with him, and sometimes… not agreeing with him at all). I really don’t have too much to say about the profile, except that it’s unfortunate that Buzzfeed’s Joseph Bernstein helps build up the myth that FOSTA was responsible for taking down Backpage:

The state still has the limited power to regulate individuals? speech. But so too can the state pressure or mandate social platforms to limit what they publish (as it did in FOSTA/SESTA, which forced websites like Backpage to stop hosting ads for sex work, resulting in conditions that sex workers say have endangered them), and so too do social platforms govern the speech of their users.

This is really, really wrong — and it’s unfortunate, because it makes you wonder what other errors might be lurking in Bernsteins’ reporting (he’s normally a great reporter, but this is a pretty big error). In fact, there was an entirely different law, the SAVE Act from 2015, that made advertising sex trafficking illegal. And, it was grandstanding threats by Congress (way before FOSTA/SESTA) that made Backpage shut down its entire adult section. And it was the DOJ who took down Backpage before even FOSTA was law. So why is anyone reporting that FOSTA helped take down Backpage?

Because that’s the narrative FOSTA supporters wanted from the very beginning. It’s why so many of the quotes about the introduction of the bill mentioned Backpage. It’s why sponsors of the bill falsely claimed Backpage was taken down thanks to FOSTA. But we shouldn’t let them rewrite history like this, and reporters like Bernstein shouldn’t contribute to this myth. FOSTA wasn’t necessary to take down Backpage.

Filed Under: cda 230, fosta, history, intermediary liability, mrac randazza
Companies: backpage