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Published: Sat, 10 Dec 2016 00:00:00 -0500

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Backpage Leaders Beat Pimping Charges as Court Affirms Importance of Immunity for Web Publishers of Third-Party Speech

Sat, 10 Dec 2016 08:20:00 -0500

Some good news for folks who value free speech and sex-worker safety and frown on prosecutorial overreach: Sacramento County Superior Court Judge Michael Bowman has sided with the current and former heads of Backpage in their battle against California Attorney General (AG) Kamala Harris. The defendants had been charged with pimping and conspiracy to commit pimping for running, an online classified-ad site that Harris has called "the world's largest online brothel" due to its ample "adult" and "escort" ads. But as Bowman noted in a preliminary decision in November, federal law specifically prohibits online publishers and publishing-platforms from being held criminally liable for user-generated content, under Section 230 of the Communications Decency Act (CDA). "Congress did not wish to hold liable online publishers for the action of publishing third party speech," wrote Bowman at the time. "Congress has spoken on this matter and it is for Congress, not this court, to revisit." Judge Bowman seemed set to dismiss the charges in November, but the AG's office asked for more time to prove that defendants—current Backpage Chief Executive Officer (CEO) Carl Ferrer and former heads Michael Lacey and James Larkin—had not simply presided over a publishing platform but actually altered user-posted ads in order to disseminate them more widely or to conceal the illegal nature of their offerings. Harris' office subsequently submitted 74 pages of info and internal Backpage emails to make the state's case. These documents mostly centered on how Backpage handled the aggregation and publishing of content on two affiliated sites, Evil Empire and Big City. As Bowman summed it up: Prosecutors' "overall theory is that Backpage knew prostitution ads were placed on its main site and, in response, created two additional websites with the goal of encouraging that prostitution through increased ad placement." The state also contended that Backpage "manipulated" content in various ways—shortening headlines, cropping images—when it repackaged Backpage ads on the additional sites. But after considering the state's new evidence, Bowman concluded in a December 9 decision that "defendants have, at most, republished material that was created by a third party." The judge pointed out that California's declaration in support of the defendants' arrest warrant even stated that ads were "essentially identical" to their counterparts. "This demonstrates republication, not content creation," and "republication is entitled to immunity under the CDA," wrote Bowman. The judge also blasted the state's assertion that removing possibly illegal content from user posts counted as criminally manipulating them: Assuming that the People's assertion is true; that the ad went from expressing intent to advertise prostitution to express a desire to 'date,' the People are essentially complaining that Backpage staff scrubbed the original ad, removing any hint of illegality. If this was the alleged content 'manipulation,' the content was modified from being illegal to legal. Surely the AG is not seeking to hold Defendants liable for posting a legal ad; this behavior is exactly the type of 'good Samaritan' behavior that the CDA encourages through the grant of immunity. Ultimately, the court "finds it difficult to see any illegal behavior outside of the reliance upon the content of speech created by others," wrote Bowman. "The whiff of illegality is detected only when considering the alleged content of the statements contained in the ads. ... Thus, the prosecution depends on consideration of speech provided by a third party." The court granted defendants demurrer seeking to have the charges against them dismissed, vacated further court dates, and exonerated bond for each defendant. In his conclusion, Bowman once again wrote in boldface type that "Congress has spoken on this matter and it is for Congress, not this Court, to revisit."[...]

The Future of Free Speech on Social Media Looks Grim

Tue, 06 Dec 2016 08:30:00 -0500

Reddit has suffered a rocky year, having weathered months of censorship concerns and subreddit shutdowns. Recent revelations that co-founder and current CEO Steve Huffman was surreptitiously editing Reddit posts critical of him have thrown the community into still more chaos. But Reddit is far from the only social network struggling with the tension between speech and sensitivity. Similar snafus at other services have been dominating recent headlines: there's "fake news" on Facebook, "hate speech" on Twitter, and the continued scourge of rude comment sections. Social-media platforms are finding it harder to mouth free speech platitudes (and enjoy the corresponding cultural benefits) while at the same time actively curating a sanitized media feed. Yet to not curate or censor is to be accused of aiding and abetting a parade of horribles ranging from online jihadis to the "alt-right." The so-called "Reddit Revolt" has pitted a coterie of left-leaning "social justice warriors" against a ragtag, right-leaning, and rambunctious crew who call themselves free-speech activists. Tensions between Reddit administrators and certain subreddits—most notably, the pro-Trump subreddit called r/The_Donald and a now-banned conspiracy theory subreddit called r/pizzagate that believes high-level world leaders operate and patronize international child-trafficking rings—have been high over the past year, as these communities' impolitic and often impolite content raised the hackles of the website's generally more liberal operators. Where Huffman, or u/spez as he is known on Reddit, really crossed a line with certain Redditors is when he admitted to amending user comments that were critical of him to appear like they were criticizing moderators of r/The_Donald instead. While some have been able to forgive Huffman's faux pas as an immature but benign troll against a community that constantly causes problems, others have decided to leave the platform all together in search of more censorship-averse websites. Of course, internet companies like Reddit and Twitter are private corporations that can run their businesses however they see fit. If that includes censorship, so be it. Users are free to seek or build a better alternative—as users of the still relatively-obscure Voat or Gab platforms have—or just stop using the service altogether. Yet a social network is only as valuable as, well, its network. If everyone you know insists on using a certain service, you're probably going to use that one, too. Even if you don't personally use a particular network, if enough people in a country or planet do use it, then its policies and priorities could have a major impact on your life. And then there's the value of "free speech" on a conceptual level. If you hold free speech to be an ideal worth fighting for, you will push platforms to protect it, even if it is costly or inconvenient. This is a conundrum that we didn't have to seriously deal with for a long time. In their early days, social-media platforms were "open" merely by virtue of their limited scale. Far fewer people used these websites, and the early adopters who did were largely internet-hardened veterans of forums and IRC channels who were not exactly allergic to a good flame war. For years, social media platforms touted this openness as a key cultural and design feature of their services. Former Twitter CEO Dick Costolo famously characterized the microblogging platform as "the free speech wing of the free speech party." Mark Zuckerberg marketed Facebook as a "place where people across the world share their views and ideas." And of course Reddit has long positioned itself as a "free speech site with very few exceptions"—even when said speech was personally revolting to its operators. Only criminal acts, "doxing," IP violations, and perhaps targeted harassment were grounds for platform intervention—and even then, in a limited fashion. Other than that, users were expected to generally work things out among themselves. This ethos of voluntary collaboration and lar[...]

You Don’t Have to Be British to Be Extremely Worried About U.K.’s New Surveillance Law

Wed, 30 Nov 2016 13:45:00 -0500

Queen Elizabeth gave her assent to the British Investigatory Powers Bill on Tuesday, the last step needed before the massive surveillance authorization bill becomes law in 2017. A new, deeper analysis of the final law by tech experts suggests there's more to fear than simply government access to citizens' browser history. This law may ultimately put everybody's data privacy and security at risk. To refresh everybody's memory, the Investigatory Powers Bill—nicknamed by critics the "Snooper's Charter"—formally legally increases the power of the British government to engage in online surveillance, provides rules to allow for the bulk collection of citizen metadata, and the authority to hack into devices remotely. The law requires Internet Service Providers to store information about users' browser history for a year and hand over this information to government officials when provided a warrant. Essentially the law formalizes some secretive surveillance methods already being used by government that were exposed by Edward Snowden, but it also provides for some judicial oversight. While the law is being sold as a way to keep the United Kingdom "safe" and to fight terrorism, the reality is that a whole host of government agencies who have nothing to do with national defense will also have access to this information. These are agencies that investigate fraud and deal with taxation and licensing issues. It is abundantly clear to anybody familiar with the law that it is designed and intended to be used to investigate domestic crime, not just terrorism. But there's more. Privacy advocates and tech companies had been fighting with the British government over the crafting of the law, particularly about the inclusion of mandates for encryption "back doors" so that government officials would not be stymied in their surveillance efforts. While the new law doesn't officially mandate encryption back doors, U.K.-based tech media site The Register scoured the 300-page law and discovered buried deep within something just as bad. Government leaders will be able to give a company what they're calling a "technical capability notice" that can impose obligations and changes upon the products (software, apps, whatever) that may demand "removal by a relevant operator of electronic protection applied by or on behalf of that operator to any communications or data." That is to say: The law doesn't mandate encryption back doors outright, but it gives the government the authority to demand that specific companies remove the encryption protecting data. That means the British government expects that all of these companies will have the capacity to break their own encryption on the demand. So in reality, the law does mandate encryption bypasses and back doors for communication tools, but it's allowing the companies to maintain control over the "keys." If this sounds familiar to Americans, this line of the law has the same impact as the widely mocked terrible legislation proposed by Sens. Diane Feinstein (D-Calif.) and Richard Burr (R-N.C.) in the spring. In response to Apple's refusal to help the FBI decrypt the iPhone that was in the possession of one of the San Bernardino terrorists, the senators crafted the technologically illiterate "Compliance with Court Orders Act of 2016." Like the text of the British law, it doesn't order tech companies to create back doors for the government to bypass encryption, but it does require that the tech companies themselves bypass their own encryption when given a court order to do so. What's the big deal? There is a simple truth that everybody who works within the tech industry or writes about technology understands that many government officials are either choosing to ignore or unwilling to accept: When a company creates encryption methods that have built-in bypass methods, there is no guarantee it will stay in the hands of the company or that only the "right people" will gain access. Accidents happen. Espionage happens. We saw an example of it earlier in the [...]

The United Kingdom Authorizes Broad Mass Surveillance on Its Citizens

Mon, 28 Nov 2016 12:45:00 -0500

The United Kingdom's Gangmasters and Labour Abuse Authority is not part of an agency tasked with fighting terrorism. They are a licensing body monitoring labor rules in the U.K.'s agriculture industries. Nevertheless, under a new mass surveillance law, high-ranking officials of this agency will have as much access to the private Internet information of British citizens as agencies that actually are tasked with fighting terrorism. This will be the outcome of the passage of the Investigatory Powers Act, also known as the Snooper's Charter. It has passed both houses of the British Parliament and will become law in 2017 if approved by the queen. The Investigatory Powers Act makes the surveillance authorized by America's PATRIOT Act look remarkably tame in comparison. The law requires Internet Service Providers to keep all metadata and web browsing history of users for 12 months. And it allows top officials of dozens of government agencies to demand access to this information, not to fight terrorism, but any sort of crime. The list of agencies granted access included in Schedule 4 of the 300+-page law includes several government bodies whose job it is to fight various forms of fraud or general crimes. It contains rules on how to get warrants to access confidential information stored by journalists and to try to track down a journalist's sources. It, of course, creates special protections for members of Parliament to provide extra requirements before snooping on them. This is not a law about fighting terrorism. This is a law that completely destroys citizens' online privacy for the benefit of any sort of governmental investigation to solve domestic crimes. Edward Snowden called it "the most extreme surveillance in the history of Western democracy." This was a pet project of new Prime Minister Theresa May, and I've previously noted that she is absolutely awful on surveillance and privacy, going so far as to think that snooping on private communications is an acceptable way to fight "cyberbullying." People are now petitioning to try to force the House of Commons to reconsider the legislation. At the same time this domestic surveillance law is being passed, the U.K. is also considering a bill adding additional restrictions to the availability of online pornography. The law's stated purpose is to demand age checks to access porn sites, but a clause would potentially ban portrayal of certain types of "non-traditional" sex acts, meaning the kinky stuff, like spanking, female ejaculation, and anything that looks non-consensual (even though it's just role-playing). It doesn't take a brain surgeon to see the very, very bad ways that these two laws could intersect. Ron Bailey previously noted how Russia is using surveillance laws like those in the U.K. and the United States as models for their own. The Investigatory Powers Act is an autocrat's wet dream. Laws exactly like this one will be used in other countries to snoop and crack down on dissenters and protesters, and the United Kingdom will hardly be in a position to criticize. And if President-Elect Donald Trump's choice to head the CIA—Rep. Mike Pompeo—is an indicator, America may be following in England's footsteps.[...]

Official Hypocrisy

Fri, 25 Nov 2016 12:00:00 -0500

As part of a recent child pornography investigation disconcertingly known as Operation Pacifier, the FBI ran a website that distributed photographs and videos of children being sexually abused.

Last year, according to The Seattle Times, "after arresting the North Carolina administrator of The Playpen, a 'dark web' child-pornography internet bulletin board, agents seized the site's server and moved it to an FBI warehouse in Virginia." The bureau used the website to run "a sting and computer-hacking operation of unparalleled scope that has thus far led to criminal charges against 186 people," mostly for receiving or possessing child pornography.

In other words, the government became a major distributor of illegal images in an attempt to catch people who look at them, thereby committing a more serious crime than those arrested.

As attorneys representing the people busted by the FBI have pointed out, the government's position is that children are revictimized every time images of their sexual abuse are viewed or shared. That argument is one of the main rationales for punishing mere possession of child pornography, which under federal law and the laws of some states can be treated more harshly than violent crimes—more harshly even than actual abuse of children.

"Distributing" such an image is a federal crime punishable by a mandatory minimum sentence of five years and a maximum sentence of 20 years. If such actions merit criminal prosecution because they are inherently harmful, there is no logical reason why the federal agents who ran The Playpen should escape the penalties they want to impose on the people who visited the site.

Judge Says Backpage Protected by First Amendment, Rejects Pimping Charges for CEO... Then Backtracks a Few Hours Later

Wed, 16 Nov 2016 18:32:00 -0500

It looked like the courts would once again save us from prosecutorial overreach aimed at web classified-ad site Backpage—and in so doing, reaffirm the protection under federal law and the First Amendment that's afforded third-party publishers of online content. On Wednesday morning, Sacramento County Superior Court Judge Michael Bowman indicated that he would reject California's case against Backpage CEO Carl Ferrer and two former site owners on charges of pimping, pimping a minor, and conspiracy. In a tentative ruling, Bowman agreed with the defense that the federal Communications Decency Act prohibits the charges aginst Ferrer and co-defendants Michael Lacey and James Larkin, who were all arrested in October. "Congress did not wish to hold liable online publishers for the action of publishing third party speech," he wrote. "Congress has spoken on this matter and it is for Congress, not this court, to revisit." The last sentence was bolded. Although Bowman could not issue a final ruling until after oral arguments, which were scheduled for Wednesday afternoon, he said that the final ruling come as early as that evening. And it did: Bowman now wants more info. According to Cheryl Miller of California legal newspaper The Recorder, the judge has now said he won't dismiss the pimping charges just yet and would like more briefings from both sides before deciding whether to make the tenative ruling final. The case against Ferrer and company was instigated by the California Department of Justice and led by state Attorney General Kamala Harris, who called Backpage "the world's top online brothel." Harris, a Democrat, just won a seat in the U.S. Senate. In October, former Backpage owners Lacey and Larkin accused her of bringing the charges against them as a pre-election publicity stunt. "Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested," the men alleged in a statement. "She issued her sanctimonious public statement, controlled her media cycle and got her 'perp walk' on the evening news. ... And if the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the First Amendment and federal law are finally adjudicated. She won't pay. The taxpayers of California will." As I noted here then, Harris knew the charges she was bringing against Ferrer, Lacey, and Larkin were not permitted under federal law. In 2013, she petitioned Congress to change the law specifically so that she and other state attorneys general could prosecute Backpage owners. Which means her presence now in Congress doesn't bode well for Section 230 of the Communication Decency Act (CDA), the part that protects web publishers and platforms from criminal liability for user-generated content. For now, it looks uncertain whether Backpage—which has emerged victorious in several previous attempts by state prosecutors to go after it in unconstitutional ways—will be afforded the protections guaranteed under Section 230. "The importance of the protection afforded by the First Amendment was the motivating factor behind the creation of CDA," Bowman noted in his tentative ruling earlier today. While government has a legitimate interest in fighting sex trafficking, that interest "is not absolute," wrote Bowman, "and must be constrained by the interests and protections of the First Amendment to the U.S. Constitution." Bowman also pointed out in the tentative ruling that California criminal code defines pimping as living or deriving financial support from the earnings or proceeds of a person's prostitution, and "does not apply to an individual who provides a legitimate professional service to a prostitute even if paid with proceeds earned from prostitution." In this case, Backpage earns money for services rendered to sex workers—providing a platform and tools to easily post advertisements—not by taking a cut of any sex-work [...]

Policing ‘Fake News’ Is Our Own Responsibility, Not Facebook’s

Tue, 15 Nov 2016 13:45:00 -0500

So now it's Facebook's fault that Donald Trump was elected president. If you have any number of friends who like sharing either memes or headlines, you've undoubtedly seen all sorts of fake news stories and fabricated facts. We're not talking deliberate parodies, like The Onion, though even they fool people now and then. We're talking pieces that are just completely made up by little-known "media outlets" with vague names, and the stories are intended to be perceived as real. Because these stories don't show up anywhere else (because they're not true), people might be more inclined to click the link to read when they see them on Facebook, particularly when the headlines are outrageous. There's now apparently both a push to act as though these fake stories had a major impact on the election and also that Facebook should do something about it. There has been coverage in the New York Times, Gizmodo, and elsewhere. Google and Facebook have responded in the past by trying to find ways to de-emphasize links from these sites and just recently announced they'll refuse to run ads on fake news sites. There are a lot of concepts to parse on what seems like a minor election side story (and the latest reason for some people to ignore why Hillary Clinton actually lost), but it's worth exploring more deeply. First of all, perhaps consider that thinking people voted because of fake information they were exposed to on Facebook says more about you than them. To the extent that people fall for fake news, the fact that such news affirms existing biases certainly plays a major factor. Does anybody have evidence to suggest that fake news actually caused anybody to change their vote? There is a component to this particular argument that has a stench of "What a bunch of rubes the people are," connected directly to the results of a controversial election. Not that people don't believe in conspiracies or fall for fake news, but as Jesse Walker would point out, Americans across the spectrum believe in them, not just those who would vote for Trump. And I would point out that believing fabricated conspiracy stories perpetuated by fake news sites significantly influenced the election is itself kind of a conspiracy theory. Second, do you know who was big about pointing out fake news stories? Donald Trump. All those accusations of sexual assault and harassment? He said they're all lies. A smear job. He said he was the victim. We all understand what people demanding Facebook do something about "fake news" are actually getting at. They're generally not asking for Facebook to serve as an arbiter of the factual components of controversies (though I wouldn't put it past some people). Facebook is not very good at managing controvery. Rather what these folks have in mind that is that there are clearly news outlets that are producing fake news stories on purpose to get page views and earn some cash, and they're absolutely right. But that's exactly how Trump would describe the media outlets who run with the assault stories. So what these frustrated people need to realize is that if they convince Facebook to censor sharing of these obviously fake stories, then there's going to be a fight over what a "fake story" actually is. There's a bias here—in media circles most obviously—that it's simply going to be a matter of cutting out the outlets making stuff up from whole cloth. These little no-name places that aren't known journalistic outfits. Why would it end there? Given that Facebook is now so influential in putting information in front of people, the result will most certainly be a push to define "fake" down in order to keep stories that harm certain interests from spreading. And so, yes, forget letting algorithms do all the work. Eventually Facebook staff will be put in a position of determining what is and isn't "real" news. How many people think the Trump sexual assault scandal is fake? How man[...]

Stop Sharing News That Trans Teen Suicides Spiked Post-Election—It's Not Just Wrong, But Dangerous to LGBT Youth

Sat, 12 Nov 2016 21:15:00 -0500

Calls to mental health and suicide hotlines spiked this week after Donald Trump was elected president, according to four major crisis-prevention hotlines, with much of the increase coming in calls from LGBT people. Even worse, the election results allegedly triggered the suicides of at least 10 transgender Americans—the majority of them teenagers—within the few days following Trump's win, according to reports rapidly circulating on social media. But while the Trump/Pence win and the return of Republican power may have created apprehension among the LGBT community, there's no evidence to support rumors of a recent wave of transgender-teen suicides and very good cause to doubt them. Tragically, though, this false epidemic going viral could help drive up real suicide attempts among struggling teens. The news of a wave of trans teen suicides began circulating on Wednesday, when a few people posted Facebook updates claiming that the information came from private support groups for parents of transgender children. It was given legs Wednesday night by Guardian writer and Out magazine editor-at-large Zach Stafford, who tweeted that "at least 8 trans youth have committed suicide in the wake of Trump's win." Stafford's tweet was retweeted more than 13,000 times before he deleted it, explaining: "as we continue to investigate the reported suicides, I've spoken w/ GLAAD and we feel it best to take down the original tweet. ...until families can come forward & we have better facts. Currently there is fear of suicide contagion due to the social media." Nick Adams, director of the GLAAD Transgender Media Program, told BuzzFeed News that there were "unconfirmed reports that some trans people died by suicide in the hours following the election," though at that point it was "not possible to substantiate those rumors." He added that "it's important that mainstream media outlets and people on social media do not spread incomplete or inaccurate information about suicides, as it can lead others to attempt self harm." But while mainstream media may have heeded his warning, the rumors escalated on social media and blogs, spread by activists, journalists, and thousands of scared and saddened individuals. By Friday, a list of names was circulating: 10 transgender Americans who had killed themselves since Tuesday for reasons directly related to Trump's election. It's unclear where this list originated, but soon it was filling Facebook feeds and Twitter timelines. I had mentioned the transgender-teen suicide rumors in passing in an earlier post, and if there was evidence showing them to be true, I wanted to update the post. But the list immediately raised red flags—everyone was a "revolutionary communist activist" or had a pregnant fiance or a family wherein Trump's election somehow resulted in there only being enough money for one of two trans siblings to transition. So I started looking for more information about any of the named people. If I could find anything affirming these heartbreaking incidents, I wanted to share it. If not... well, what kind of sick person makes things like this up? In countless comments, tweets, and Tumblr posts, people were sharing the list with genuine grief, worry, anger, and fear. Countless young LGBT people and sad, scared kids were likely seeing this. I'm no expert on social contagion or teen suicides, but the people who are seem to think this is exactly what we don't want: a tide of unsubstantiated suicide rumors that could normalize, glamorize, or otherwise encourage suicide attempts in already depressed or vulnerable young people. But in trying to confirm that any of the named people had committed suicide, or even existed, I've turned up nothing. Most of their names don't exist in web search results outside of the numerous shares of this list. The more common names yield some people with those names, but none that appe[...]

The FBI May Have Run Not Just One But 24 Dark Web Child-Porn Websites

Fri, 11 Nov 2016 17:30:00 -0500

The FBI has a controversial new method of fighting child pornography: distributing child pornography. As part of "Operation Pacifier," the federal law-enforcement agency ran a dark-web child porn clearinghouse called The Playpen for two weeks, delivering malware to any site visitors, in a scheme that was revealed last summer. But it turns out that site may not have been the only dark-web site that the FBI maintained. According to documents obtained by the American Civil Liberties Union (ACLU), the agency was actually authorized to takeover 23 child-pornography websites in addition to The Playpen. According to a recently unsealed FBI affidavit, the 23 Tor-hidden sites were run on one computer server and the FBI requested authority to seize this server and deploy its "network investigative technique" on these sites. During the 30-day deployment period, any visitor to sites 1-23 would receive the NIT instructions (essentially malware), which were "designed to cause the 'activating' computer to deliver certain information to a computer controlled by or known to the government," as the FBI affidavit explained it. This information included the computer's actual IP address, host name, operating-system type, and MAC address. Near the end of the affidavit, the FBI notes that "while Websites 1-23 operate at a government facility," normal user-request data associated with websites 1-23 will be collected" and "such request data can be paired with data collected by the NIT... to attempt to identify a particular user and to determine that particular user's actions on Websites 1-23." Cybercrime lawyer Fred Jennings told Ars Technica, "That paragraph alone doesn't quite say the FBI is operating" the websites. "But definitely no other way to read that than websites 1-23 were hosted at a government facility, with the FBI's knowledge and to the FBI's informational benefit. It's clever phrasing on their part." An analysis from security researcher Sarah Jamie Lewis found that between April and August 2016, there were 29 Tor-hidden websites devoted to child porn. Lewis told Ars Technica that "it's a pretty reasonable assumption" that the FBI as running about half of them at some point. "Doing the math, it's not zero sites, it's probably not all the sites, but we know that they're getting authorization for some of them. I think it's a reasonable assumption—I don't think the FBI would be doing their job if they weren't." As Reason's Jacob Sullum noted when the Playpen news came out, "the government's position is that children are revictimized every time images of their sexual abuse are viewed or shared," which "is one of the main rationales for punishing mere possession of child pornography," not just those who make or distribute or profit from it. Under federal law, distributing a sexually explicit image of a child comes with a mandatory minimum prison sentence of five years and a possible 20 years."If such actions merit criminal prosecution because they are inherently harmful," Sullum points out, "there is no logical reason why the federal agents who ran The Playpen should escape the penalties they want to impose on the people who visited the site." The Playpen authorization came from a judge in Virginia, while the mysterious websites 1-23 were authorized by a judge in Maryland. So far, more than 200 charges have stemmed from the FBI's Playpen foray, mostly for receiving or possession of child porn. But in trying to prosecute theses cases, the FBI has already faced resistance from federal judges holding that the FBI's operation was unconstitutional and any evidence obtained must be suppressed. "The courts have been divided in their rulings on whether the FBI went too far," explained Mike Carter at The Seattle Times, "and prosecutors and defense lawyers say the case is almost certainly headed to the U.S. Supreme Court."[...]

SCOTUS Will Consider Challenge to Ban on Social Media Use by Sex Offenders

Mon, 31 Oct 2016 09:45:00 -0400

After beating a traffic ticket in 2010, Lester Packingham exulted on Facebook: "Man God is Good! How about I got so much favor they dismiss the ticket before court even started. No fine, No court costs, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!" That burst of exuberance led to Packingham's arrest and prosecution, because as a registered sex offender in North Carolina he was prohibited from using Facebook or any other "commercial social networking Web site." Last Friday the U.S. Supreme Court agreed to hear his First Amendment challenge to that rule. In 2002, when he was 21, Packingham pleaded guilty to taking indecent liberties with a minor. A first-time offender, he received a sentence of 10 to 12 months, after which he served two years of probation. He was required to register as a sex offender for 10 years. Six years after Packingham's conviction, the North Carolina legislature enacted a law that made it a Class I felony, punishable by up to a year in jail, for a registered sex offender to "access" any commercial website open to minors that facilitates social introductions, allows users to create web pages or profiles that include personal information, and enables users to communicate with each other. That restriction applies to all sex offenders listed in North Carolina's registry, whether or not their crimes involved children or the internet and no matter how long ago they occurred. The law clearly covers social media platforms such as Facebook and Twitter, and it arguably applies even to ubiquitous services such as Google and Amazon, which are not primarily social networking sites but seem to meet the statutory definition. A unanimous state appeals court agreed with Packingham that the law he broke violated his First Amendment rights. Applying intermediate scrutiny, the court concluded that the law "is not narrowly tailored, is vague, and fails to target the 'evil' it is intended to rectify" because it "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal." The North Carolina Supreme Court reversed that ruling in a 4-to-2 decision last year, finding that the law is mainly aimed at conduct, affecting speech only incidentally, and is narrowly tailored to achieve the state's goal of preventing sex offenders from "prowling on social media and gathering information about potential child targets." The court also concluded that the law leaves open "ample alternative channels for communication," since it exempts sites that bar minors, that are designed mainly to facilitate commercial transactions among users, or that provide a single discrete service such as email, photo sharing, or instant messaging. While Packingham could not legally use Facebook or Twitter, the majority noted, he was still free to swap recipes on the Paula Deen Network, post photos on Shutterfly, look for a job at, or get news updates from the website of WRAL, the NBC station in Raleigh, since all of these sites officially limit registration to users 18 or older. UCLA law professor Eugene Volokh, who worked on a friend-of-the-court brief urging the U.S. Supreme Court to take up the case, questions the state court's understanding of "ample alternative channels," a requirement for applying intermediate rather than strict scrutiny to limits on speech: How can a total ban on some people's use of Facebook, Twitter and the like be said to leave open "ample alternative channels"? [According to the North Carolina Supreme Court,] the people restricted by the law can't read or post to Facebook, Twitter and so on. But no problem—the sex offender still has ample alternative channels, such as the Paula Deen Network,, and Shutterfly. The state has argued that the Nort[...]

Former Heads Say Pimping Charges Motivated by Politics, Not Facts

Thu, 20 Oct 2016 12:52:00 -0400 Chief Executive Carl Ferrer and the classified-ad company's former owners are seeking a dismissal of the pimping and conspiracy charges filed against them in California, which they describe as unconstitutional, unjustified by facts, and a violation of federal communications law, as well as a blatant ploy for publicity from California Attorney General (AG) Kamala Harris. The state "cannot pursue the charges asserted and, in fact, is expressly precluded from doing so under Section 230 of the Communications Decency Act," their attorney, James Grant, wrote in a letter to Harris, who is currently running for U.S. Congress. She can't claim ignorance: three years ago, Harris was one of several state attorneys general who pleaded with Congress to change the law so that they could prosecute Backpage, specifically admitting that, as is, Section 230 "prevents state and local law enforcement" from doing so. Congress said no. "It is troubling that the State is now pursuing a prosecution you admitted you have no authority to bring," Grant wrote. Ferrer and his co-defendants, Michael Lacey and James Larkin, were booked for pimping, pimping a minor, attempted pimping of a minor, and conspiracy, based on the state's contention that they know some of the tens of millions of user-generated posts on are veiled ads for prostitution, sometimes involving teenagers. As evidence of this, the state pointed out that Backpage blocks ads explicitly offering prostitution, states clearly that ads in the "adult" section can only be posted by adults, and promptly removes posts that are reported to advertise sex or underage women. In the topsy-turvy logic of the criminal complaint, the fact that Backpage policies are designed to prevent commercial-sex advertising and the prostitution of minors shows that execs actually condone these things, because said policies encourage posters of illicit sex ads to conceal their true intentions. "The AG's Complaint and theory of prosecution are frankly outrageous," state the defendants in a formal objection to the changes, filed October 19. "The basis for the AG's charges is that third-party users posted ads on, and the AG's office determined by responding to the ads that the users were offering prostitution." In total the complaint mentions nine ads, for which Backpage received $79.60. It does not allege that Ferrer, Lacey, or Larkin knew the ad-posters were discreetly offering sex for cash, knew the ad posters personally at all, had ever seen the ads in question, or had any direct knowledge of these ads. In his letter to the AG, the Backpage attorney notes that a recent federal court ruling against the Sheriff of Cook County, Illinois, "reject[ed] much the same theories that [California] asserts here," and that the U.S. Supreme Court has long recognized that "states cannot punish parties that publish or distribute speech without proving they had knowledge of illegality." In addition, "Section 230 expressly preempts all inconsistent civil and criminal state laws," he notes. "Literally hundreds of cases have applied and underscored the broad immunity that Section 230 provides and that Congress intended so as to avoid government interference— especially by state authorities—that would chill free speech on the Internet." Backpage itself has fought for these rights many times, winning cases in federal courts in New Jersey, Massachusetts, Washington, Tennessee, Illinois, and Missouri. But knowing the law is on their side "was of modest comfort," said Lacey and Larkin, "as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it." The former Backpage owners suggested th[...]

Say 'Hi' to the NSA in Your Next Email

Tue, 11 Oct 2016 08:00:00 -0400

It's been a rough month for Yahoo. Within a few weeks, the struggling tech-company was accused of undermining its customers' security and privacy, after a massive hack of user-data from 2014 was followed-up this fall with allegations of involvement in an unprecedented government surveillance program. The question now is whether more tech companies are secretly complying with federal orders to spy on us. For Yahoo, the woes started in late September, when chief information security officer (CISO) Bob Lord delivered some harsh news on the firm's official Tumblr account: Yahoo had been hacked. Lord confessed that the account information of some half a billion customers had been extracted and rested in the hands of unknown parties. Fortunately, no financial information appears to have been leaked. Still, the names, email addresses, birthdays, telephone numbers, security questions, and passwords of 500 million users had been successfully lifted in the 2014 incident. Then, in early October, Reuters reported that Yahoo secretly allowed a massive government surveillance program to scan all incoming emails to Yahoo accounts. The custom software program was reportedly built by Yahoo at the behest of the National Security Agency (NSA) and the FBI, at the direction of a Foreign Intelligence Surveillance Court judge. According to Reuters' unidentified sources ("three former employees and a fourth person apprised of the events"), the decision of Yahoo Chief Executive Officer (CEO) Marissa Mayer to follow the directive angered some senior executives at Yahoo, and led to the departure of then-CISO Alex Stamos in June 2015. The New York Times reports a history of skirmishes between Stamos and Yahoo executives over how much to invest in security. Stamos, who is known in the industry as somewhat of a privacy and security hardliner, often butted heads with Mayer, the Times said. Mayer was fearful that the introduction of standard security measures, like an automatic reset of all user passwords, would anger Yahoo users and drive them away to other services. Yet few things can drive users away quite like a record-setting security breach... After the hack was revealed, Yahoo encouraged affected users to change their passwords and security questions immediately. But this was almost certainly too little, too late. Many people re-use the same exact password and security questions for many, if not all, of their online accounts. A criminal who had the hacked data could have gained access to all sorts of users' other accounts with these "master" passwords and answers to security questions. Even if this hasn't happened yet, many Yahoo users won't change their passwords for other websites and a good number won't even change their Yahoo passwords. The company was quick to blame the attack on "state-backed actors." But as some skeptical information-security experts have pointed out, this excuse is often deployed to downplay suggestion of company negligence. In the words of security writer Bruce Schneier, "'state-sponsored actor' is often code for 'please don't blame us for our shoddy security because it was a really sophisticated attacker and we can't be expected to defend ourselves against that.'" Unfortunately for Yahoo, the hacking news broke right in the middle of a $4.83 billion acquisition deal with Verizon. The purchase was expected to infuse new direction and capital into the legacy tech-company. Now, it looks like Verizon may be hoping to get a $1 billion discount if it does go ahead with the deal. But the hacking of Yahoo-user account data is small compared to recent revelations about the company cooperating with government surveillance. It's unclear what exactly the NSA and FBI were looking for, but sources told The New York Times that some Yahoo [...]

Brickbat: Home-Based Business

Tue, 11 Oct 2016 04:00:00 -0400

(image) A German court will decide whether the room in her home webcam girl Natalie Hot performs in counts as a home office. Hot lives in an area that isn't zoned for commercial activities, and some of her neighbors have complained about her business as well as the noise she makes. But residents of the neighborhood are allowed to maintain an office in their homes, and she says her webcam business really is more like working from home that a commercial business.

Here's How Backpage CEO Carl Ferrer Supposedly Profited From Child Sex Trafficking

Fri, 07 Oct 2016 11:45:00 -0400

The head of, the world's second-largest online classifieds site, was arrested in Texas yesterday under a California warrant for pimping, conspiracy, pimping of a minor, and attempted pimping of a minor. Here's the paperwork filed by California Department of Justice Special Agent Brian Fichtner in support of Ferrer's arrest. The government asserts that Ferrer and Backpage intentionally profited off of child sex-trafficking. Their "evidence"? It's... insane. I don't know how else to describe it other than that. Throughout the complaint, Fichtner uses instances of Backpage cooperating with law-enforcement and the National Center for Missing and Exploited Children in identifying and finding potential victims as evidence that Backpage profits off of exploitation. Backpage is literally rejecting—and turning over to the government—ads that may promote sex trafficking, and the government says, see! proof that sex traffickers love Backpage! Shut it down! It's like a building owner reporting predatory activity out front and the cops arresting him and tearing up the street corner instead of tracking down the predator. It also gives lie to the idea that this crusade against Backpage is about stopping the sexual exploitation of children and not eradicating online ads for sexual-services entirely. First, officials went after the "adult services" section on Craigslist. Then they took down sex-ad forum, the gay prostitution site, and escort review forum The Review Board. Next up: Backpage. It's simply the latest target in the U.S. government's quixotic and cruel aim to make sex-work as hidden (and dangerous) as possible. Below, check out the lame logic California offers to justify portraying Ferrer as a sex trafficker and charge him with pimping children: 1. Adults advertising legal sexual services on Backpage (such as sensual body rubs) may actually be peddling sex. As Craigslist shows, if you give people a place to post classified ads, many will be for prostitution. The government likes to crow about how it got Craigslist to take down its "Adult Services" section, but take one look at sections for dating and "casual encounters" and you'll see the sex trade is still totally alive and well on Craigslist. The presence or absence of a heading marked "adult" or "escort" ultimately makes little difference—heck, there are plenty of people offering sex on Twitter every day. It's absurd to expect websites to intuit the real motives of every user who posts, or try to somehow screen out people offering legal pay-to-play erotic activity from those who will tack on a hand-job at the end of a massage or have sex with a client after flogging him. 2. Adults explicitly advertising sexual services for a fee on Backpage are indeed offering sexual services for a fee. For the record, Backpage runs hundreds of thousands of user-generated ads every day. It does not, cannot possibly, and does not claim to look at all of them before they go up, which is why it relies on automated screening processes that flag potentially suspicious ads, with these flagged ads then reviewed by actual humans. Trying to prevent people from offering illegal services (like prostitution) through such screening processes is all Backpage can realistically do, short of not existing. And it should be enough to protect it from criminal liability under federal law. Like other user-generated content and social media sites—from Craigslist to Reddit to Facebook—Backpage is theoretically shielded from liability for things users post by Section 230 of the federal Communications Decency Act. 3. Sex sells better than old sofas. Somehow this is Ferrer's fault. 4. Backpage removed an ad suspected [...] CEO Carl Ferrer Arrested in Texas for Pimping, Conspiracy

Thu, 06 Oct 2016 21:00:00 -0400

Carl Ferrer, the chief executive officer of Amsterdam-based classified-ad site Backpage, was arrested in Texas Thursday afternoon at the Houston airport. Ferrer, who is the subject of a current Congressional-subcommittee investigation into the site's alleged role in sex trafficking, also had a warrant out in California for his arrest. The charges against him include pimping, conspiracy, pimping of a minor, and attempted pimping of a minor. None stem from things Ferrer is alleged to have done personally. Rather, it's asserted that because he own a classified-ad website—the second largest in the world, after Craigslist—where these activities may have happened, Ferrer himself is guilty of the charges. Upon arriving on a flight from Amsterdam to Texas Thursday, "nearly three dozen members of the Texas Attorney General's Law Enforcement Unit participated in Ferrer's arrest and the execution of a search warrant on the Dallas headquarters of Backpage," according to the Texas Attorney General's Office. "Making money off the backs of innocent human beings by allowing them to be exploited for modern-day slavery is not acceptable in Texas," Attorney General Paxton said in a statement. "I intend to use every resource my office has to make sure those who profit from the exploitation and trafficking of persons are held accountable to the fullest extent of the law." Outside the realm of politician hyperbole is a site much like Craigslist, its more well-known online classifieds counterpart. Like Craigslist, Backpage provides a space for people to post ads offering secondhand-lawnmower sales, independent housecleaning services, and all sorts of things—including, in the adult entertainment section of the site, things like strippers, dominatrixes, and sex. And like Craigslist—and Facebook, and Twitter, and every newspaper with a comment section—Backpage is protected by Section 230 of the federal Communications Decency Act. It says that user-generated content sites cannot be held strictly liable for things members or users post. Without Section 230, Twitter could be taken down over terrorism threats from anonymous ISIS members, Facebook could be destroyed because some users have been found to solicit sex from underage individuals in its messaging section, Reason could be liable for anything its commenters post, and Craigslist could be killed over someone selling a stolen TV there. But but but... the children! The children are actually being harmed by actions like Ferrer's arrest. I've written extensively about Backpage over the past few years, as well as about U.S. sex-trafficking investigations. While Backpage doesn't screen all its ads, it does employ people to monitor the adult section. And any ads suspected of containing anyone under 18 are reported to the National Center for Missing and Exploited Children. Countless investigations into child sex-trafficking in the U.S. have been solved with Backpage's help, as investigators all over the country have openly attested. Political opponents of the site like to imagine that without it, sex trafficking and the sexual exploitation of minors would simply cease. But the closure of sites like Backpage , where ads for adult sex workers and adults selling totally non-sex related things far outnumber any ads for illegal activity, wind up sending both independent sex workers and sexual exploiters to more underground venues or out onto the streets—places where there's no paper trail and no one screening anything or reporting any suspicious activity to the government.[...]