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

[Alpha1]

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

 

[Joeychgo]

• 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.

 

[zappaDPJ]

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.

 

[KimmiKat]

We are slowly becoming like China.

 

[Joeychgo]

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.

 

[Alpha1]

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.

 

[Anton Chigurh]

While the general jest of the bills

Intentional misuse of the word?

 

[Alpha1]

pun intended yes.

 

[Joeychgo]

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]

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.

J.

 

[Xon]

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'.

 

[Joeychgo]

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'.

Even the DOJ has raised concerns about this. https://www.eff.org/files/2018/03/19/doj-sesta.pdf

 

[TorontoTim]

• 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]

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.

 

[Alpha1]

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]

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:

 

[PoetJC]

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.

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:

View attachment 50514

Unfortunately - I agree with both of these sentiments.
And it's actually surprising really. When I first read the thread - I thought to myself that this is some straight, big-government owned, GOP partisan ****. The 97-2 vote really defines this piece of legislation as overwhelmingly supported, to the point of being the most amicable piece of legislation the US Congress has passed in the past decade. But at the same time I'm shocked. When I read the gist of the legislation - it almost reads as a supplement of sorts to the extremely partisan "Net Neutrality" stance that the majority of democrats disagree with. This legislation seems to fly in the face of Net Neutrality. Doesn't it?

Not only that - but it seems a legislation that makes the "small" guy/ hobbiest forum owner liable for things that only the "big guys" only would be able to defend in a court of law. I'm confused actually... Does anyone else see the hypocrisy and/or contradiction as concerns the democratic party voting for this legislation BUT at the same time being FOR the concept of net neutrality? How can you be for net neutrality - but want to penalize the "small" guy for content posted by his/her users? IDK... Just seems a confused hodgepodge of a piece of legislation if you ask me...

J.

 

[Nev_Dull]

How can you be for net neutrality - but want to penalize the "small" guy for content posted by his/her users?

Although this law doesn't affect me, I actually support the concept (if not the implementation). I think it actually fits well with net neutrality. I mean if everyone is to be treated equally online, regardless of their relative size or power, it only follows that everyone should be equally accountable for the content they deliver.

The downside, of course, is there is no size discount when it come to the cost of defending yourself legally.

 

[feldon30]

Large companies can easily absorb compliance costs with overreaching legislation like this. Small companies may look at the cost of even consulting a lawyer versed in the topic ($500+/hr?) and choose to shut down or relocate.

You are conflating Equality with Justice.

 

[PoetJC]

Although this law doesn't affect me, I actually support the concept (if not the implementation). I think it actually fits well with net neutrality. I mean if everyone is to be treated equally online, regardless of their relative size or power, it only follows that everyone should be equally accountable for the content they deliver.

The downside, of course, is there is no size discount when it come to the cost of defending yourself legally.

Intriguing comment.
I tend to worry about the downside though, as .... it seems that the equality factor is (unintentionally?) actually unequal...

Large companies can easily absorb compliance costs with overreaching legislation like this. Small companies may look at the cost of even consulting a lawyer versed in the topic ($500+/hr?) and choose to shut down or relocate.

You are conflating Equality with Justice.

View attachment 50546

Riveting.
Quite thought provoking. So ... I'll be thinking about this one. #WOW!

J.