New US law SESTA/FOSTA ban specific user content. Severe penalties for webmasters

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Alfa1

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The new US SESTA/FOSTA acts remove protection of website owners for the content that users add to the website, when it comes to specific content. It also seems to make webmasters liable for the ads that ad networks display on their sites. These bills silence online speech by forcing Internet platforms to censor their users.Microsoft and Google already amended their policies and hosting providers are stopping service to some websites.

SESTA/FOSTA take aim at website with sexual content which may relate to promotion OR facilitating of prostitution, sex trafficking, fraud, coercion. The bills are obviously written without careful consideration and have been rushed through congress. It seems to me that they may have severe unintended consequences.

The penalties for breaching the law are up to 10 or 25 years in jail, so this is pretty serious and needs to be considered.

While the general jest of the bills sound reasonable, it does make me wonder how far the reach of these bills could be. Some considerations:
  • If the ad network you use puts erotic ads on your site, would you be liable to prosecution?
  • The law is retroactive. How do you know if none of the posts on your site has flown under the radar and breaches such law?
  • If you allow erotic avatars, then is this a risk factor?
  • Are jokes about prostitution 'promotion of prostitution?
  • What other potential issues could there be?
So do you think the functionality that you have for flagging problematic content is sufficient?

The Acts are here:
https://www.congress.gov/bill/115th-congress/house-bill/1865/text
https://www.congress.gov/bill/115th-congress/senate-bill/1693/text

Explanation by the EFF is here:
https://www.eff.org/deeplinks/2018/03/how-congress-censored-internet
 

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Joeychgo

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  • If the ad network you use puts erotic ads on your site, would you be liable to prosecution?
  • If you allow erotic avatars, then is this a risk factor?
  • Are jokes about prostitution 'promotion of prostitution?
I would say no to all three.


The law is retroactive. How do you know if none of the posts on your site has flown under the radar and breaches such law?
Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution. Even the DOJ has raised concerns about this. https://www.eff.org/files/2018/03/19/doj-sesta.pdf


This law is aimed at sites like backpage and craigslist, which have personals sections that are frequently used by prostitutes. The law hasn't been tested, and I suspect the law, once challenged, will likely be tossed out by the courts as unconstitutional.
 
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zappaDPJ

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I received an email about something from somewhere yesterday that I skimmed and binned. I retrospect I probably should have taken a better look at it because SESTA/FOSTA was mentioned a number of times.
 

Tracy Perry

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Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution.
Really? Then can you explain how they have gotten away with removing the right to own a certain item (think 2nd amendment) for persons convicted of an offense (both misdemeanor and felony) prior to the passing of said law? Frequently referred to as the Lautenberg Amendment. They made very clear it was retroactive, and even a class C misdemeanor (in Texas the same as a speeding ticket level) would result in loss of a right for the rest of your life.
So, they can, and do, that very thing.
 

Joeychgo

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Really? Then can you explain how they have gotten away with removing the right to own a certain item (think 2nd amendment) for persons convicted of an offense (both misdemeanor and felony) prior to the passing of said law? Frequently referred to as the Lautenberg Amendment.
Because possession is an ongoing thing. They can say you can no longer own something, but they cannot say "you owned it before the law so you must go to prison."

Look up Ex Post Facto.
 
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Alfa1

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But are we not in possession of posts? Can it not be demanded that we review our content and delete illegal content?
Vice versa: if you are right about this, then would it not be possible to just backdate content and make illegal content legal?
I would say no to all three.
I'll use an example. Lets say your site gets ads from sexcam sites(chaturbate, etc), then your site promotes and benefits from what could be seen as online prostitution. (I'm not sure if it would, but essentially people are paying and getting paid for sex) The cam Ads may call on the reader to pay for watching or to get paid by opening a channel.
Such ads seem risky under this new law amendment.
 

Tracy Perry

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Because possession is an ongoing thing. They can say you can no longer own something, but they cannot say "you owned it before the law so you must go to prison."
And the offense occurred PRIOR to the passing of said law. The issue is that in many aspects that it was a "feel good" law that allowed the government to say "see what we are doing". In reality, if you ever got a ticket after telling her (wife or live in) if "you don't shut the hell up I'll whip your ass" (and I have seen that happen) then you lose your job. The reality is that there are MANY more effected by this than actually realize it. And it also cost many their jobs.
The only nice thing about it is if they ever introduce the draft, you are guaranteed you will never be on a front line as they cannot legally allow you to handle a weapon which will kill a large part of their training. :ROFLMAO:
<But in reality you will suddenly see them write an amendment allowing an exception to said law that was meant to apply unilaterally if it was causing a lack of "recruits" to occur>

I'd love to see the same theory applied to alcohol consumers and illicit/legal drug users that have been arrested for being under the influence at any time. Prohibit the ownership or possession of vehicles for them since we know they kill and injure so many on the roads. Fact is there are more people killed by alcohol influenced (not including drug influenced) drivers (10K for 2016) than by firearms during family violence (in an average year I've seen estimates of 600 die from firearms - Federal Bureau of Investigation, Supplementary Homicide Reports, 2009-13). For DWI that doesn't include those injured by drunk drivers (290,000 in 2016). So, if we are actually basing laws upon the number of people that die from an action (or are injured), guess which is MORE deserving of having the same theory applied to it. Hell, it will only effect (for alcohol) and average of 500,000 in the US annually.
Arrested for a public intoxication back n 1980.... sorry, you can't drive a vehicle in the US any longer and you shall not be in possession of one (which means being around one that you theoretically could gain control of the decision of the law enforcement agencies).

And I know I'll hear those cry that travel is a right... yep, just like possession of a firearm is in the US. Those that are subject to the Lautenberg act can own black powder firearms... guess what, those that have been convicted of being under the influence can just as easily use the same mode of transportation that was available from that same era.... horse/carriage, mule, ox, feet.

The reason you don't see it done is that alcohol/drug use is part/parcel of that "big government" lifestyle and they don't want to subject themselves to something that they know they would fall under. It also would kick them in the ass when it came time to re-election since something like that would effect LARGE swathes of society... which we can't have being upset or they don't get to stay in their sheltered environment where they act like they know what goes on in real life.

If you can't tell I don't like career politicians... then I'll plainly state that I don't like career politicians. Most of them are more corrupt than the Tammany Hall politicians were.
 
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Joeychgo

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The issue is that in many aspects that it was a "feel good" law that allowed the government to say "see what we are doing".
that's what I think is mostly going on here. As I said, I think the law ultimately will be tossed out by the courts. There are too many 1st amendment issues here and the law is in ways too vague to be enforceable.
 

PoetJC

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I was gonna say something about the awful GOP-lead congress... But it seems the bill pass 97-2 = Incredible!

And I'm like wow. The legislation's intention is admirable. But it seems to me that the actual repercussions could be a big hit to freedom of speech. I do not applaud the legislation. I think the negative repercussions far outweigh the intention. Boooo! Congress can do better! Or rather, should do better. :tdown:

J.
 

Tracy Perry

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Boooo! Congress can do better! Or rather, should do better.
Much of what gets passed now is just a band-aid to make people feel good. It's the legislators attempts to go "See, we do care about you -- we passed a law that protects you from yourself and that harsh language/behavior" so that they can prove how much that they care and that you owe them your vote. Many of the laws are not thought out well and, similar to this one, would not pass constitutional muster.
The very speech that they are banning is now part of everyday language. Morality is not something that one can legislate (unless you are living in an fundamental Islamic country) but that you have to live.
 

Xon

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that's what I think is mostly going on here. As I said, I think the law ultimately will be tossed out by the courts. There are too many 1st amendment issues here and the law is in ways too vague to be enforceable.
Very unlikely. This bill is removing an exemption granted by Congress. What Congress grants, they can take away.

And this isn't Ex Post Facto, because as you mentioned possession is an on-going thing. So if you keep hosting content that breaks the law, you are still breaking the law 'now'.
 

Tracy Perry

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I know Microsoft is said to have gone overboard on their rules for xBox live and "cursing". Simply using "offensive language" (gee, that term is SO vague) can result in loss of xBox Live, any credit you may have built up in their store and a lifetime ban on their services.
Well, guess what..... as I said earlier, cursing is an everyday part of language now - you hear it on TV and in the movies, so that ****ing horse has already fled the barn LONG ago and it's WAY to late to shut said barn door....
When words become used as part of every day language, they loose their offensiveness (in a legal aspect) and become a part of normal discourse. It may be MORALLY reprehensible to some, but that does not make it illegal. It's (to me) just one more sign of how many in society needs someone else to "protect" then from <fill in the blank here> than when society was more responsible for itself.
 

TorontoTim

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  • If the ad network you use puts erotic ads on your site, would you be liable to prosecution?
  • The law is retroactive. How do you know if none of the posts on your site has flown under the radar and breaches such law?
  • If you allow erotic avatars, then is this a risk factor?
  • Are jokes about prostitution 'promotion of prostitution?
  • What other potential issues could there be?
You typically have controls over the types of ads posted on your site. If you don’t, change your ad service. I only sell ads directly.

Erotic avatars, and jokes about prostitution? What kind of sophomoric forum are we talking about? Run a business you would be proud to show your daughter and you’ll be fine.
 

feldon30

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This law is going to have to get thrown out. In an effort to score points with voters, congress went completely overboard and practically made it a crime to run a website containing user-submitted content.

I also think Ex Post Facto should be a constitutional issue, but Congress and the Supreme Court opened the door to that with sex offender laws in the 1990's that were retroactive to the 1970's.
 

Alfa1

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The FBI just seized www.us.backpage.com and www.uk.backpage.co.uk so its seems to be reaching outside of the US as well.
Backpage offered advertisements and classifieds for all kinds of things. Ranging from household items, childcare, automotive, etc to Dating. Similar to craigslist. It was the Dating section that contained offending content. The wayback machine shows that it was littered with posts by massage Parlors. There was a clear lack of moderation there.
Its Terms of Use explicitly prohibited illegal sexual solicitation:
4. (a) Posting adult content or explicit adult material unless: (i) such material is specifically permitted in designated adult categories and permitted under applicable federal, state, and local law; and (ii) you are at least 18 years of age or older and not considered to be a minor in your state of residence;
(b) Posting, anywhere on the Site, obscene or lewd and lascivious graphics or photographs which depict genitalia or actual or simulated sexual acts, as determined in the sole discretion of backpage.com;
(c) Posting any solicitation directly or in “coded” fashion for any illegal service exchanging sexual favors for money or other valuable consideration;
(d) Posting any material on the Site that exploits minors in any way;
(e) Posting any material on the Site that in any way constitutes or assists in human trafficking.
Their Dating section had this disclaimer:
Disclaimer
This section contains sexual content, including pictorial nudity and adult language. It is to be accessed only by persons who are 18 years of age or older (and is not considered to be a minor in his/her state of residence) and who live in a community or local jurisdiction where nude pictures and explicit adult materials are not prohibited by law. By accessing this website, you are representing to us that you meet the above qualifications. A false representation may be a criminal offense.

I confirm and represent that I am 18 years of age or older (and am not considered to be a minor in my state of residence) and that I am not located in a community or local jurisdiction where nude pictures or explicit adult materials are prohibited by any law. I agree to report any illegal services or activities which violate the Terms of Use. I also agree to report suspected exploitation of minors and/or human trafficking to the appropriate authorities.

I have read and agree to this disclaimer as well as the Terms of Use.
Obviously this was not sufficient protection against user submitted content.

More information here: http://www.bbc.com/news/technology-43699203

The admin of backpage will regret the lack of moderation there.

Erotic avatars, and jokes about prostitution? What kind of sophomoric forum are we talking about? Run a business you would be proud to show your daughter and you’ll be fine.
I do not think that is realistic. For a small forum you are right. But try keeping track of thousands of posts a month, as a hobby. If you run a forum large enough then you know that you will never be able to control everything that members post. You can respond to reports and catch things that are automatically flagged or what you happen to encounter, but that's it. We send warnings and ban members all day long.

And no, you will not be fine if a law has unintended consequences. Safe harbor is vital for webmasters. As soon as you become responsible for the actions of your members, then its a whole different ballgame. Having more than a few members can become a liability in that case. So its important to know what the exact liabilities are.
 

feldon30

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Sad to say, the Communications Decency Act of 1996 is the foundation of the modern internet.

With this new law holding site operators responsible for user-submitted content, that's the ballgame. Many sites will shut down entirely. This is basically:

aeq2wire.com_wp_content_uploads_2018_04_team_america_world_police_2.jpg
 
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