Amended Complaint Filed Against Backpage... Now With SESTA/FOSTA

What a weird week for everyone promoting FOSTA/SESTA as being necessary to takedown Backpage.com. After all, last Friday, before FOSTA/SESTA was signed into law, the FBI seized Backpage and all its servers, and indicted a bunch of execs there (and arrested a few of them). The backers of FOSTA/SESTA even tried to take credit for the shutting down of the site, despite the fact that the law they "wrote" wasn't actually the law yet. Separately, as we pointed out, after the bill was approved by Congress, but before it was signed into law, two separate courts found that Backpage was not protected by CDA 230 in civil suits brought by victims of sex trafficking.

On Wednesday, President Trump finally signed the bill despite all of the reasons we were told it was necessary already proven to be untrue (and many of the concerns raised by free speech advocates already proven true). And, on Thursday, in the civil case in Massachusetts (the first to rule that Backpage wasn't protected by CDA 230 for ads where it helped create illegal content), an amendment complaint was filed, this time with FOSTA/SESTA included. Normally, this wouldn't make any sense, but thanks to the unconstitutional retroactive clause in FOSTA/SESTA it could possibly apply (assuming the judge ignores the Constitutional problems).

From the amended complaint:

In March 2018, Congress passed the "Allow States and Victims to Fight OnlineSex Trafficking Act of 2017" ("FOSTA"), and the President signed it into law on April 11, 2018.Pub. L. No. 115-___, ___ Stat. ___ (2018) (codified at, inter alia, 47 U.S.C. 230). FOSTA specifically states, among its legislative findings, that Section 230 of the CommunicationsDecency Act ("CDA"), 47 U.S.C. 230, "was never intended to provide legal protection towebsites that . . . facilitate traffickers in advertising the sale of unlawful sex with sex traffickingvictims," and that "websites that promote and facilitate prostitution have been reckless in allowingthe sale of sex trafficking victims and have done nothing to prevent the trafficking of children andvictims of force, fraud, and coercion." FOSTA 2(1)-(2). Accordingly, Congress passed FOSTAto "clarify that section 230 of [the CDA] does not prohibit the enforcement against providers andusers of interactive computer services of Federal and State criminal and civil law relating tosexual exploitation or sex trafficking." ... FOSTA amended, inter alia,Section 230(e) of the CDA to provide that "[n]othing in this section (other than subsection(c)(2)(A)) shall be construed to impair or limit . . . any claim in a civil action brought under section1595 of title 18, United States Code, if the conduct underlying the claim constitutes a violation ofsection 1591 of that title." Id. 4(a). FOSTA also provides that its amendment to Section 230(e)"shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred,before, on, or after [FOSTA's] date of enactment." ... The effect of FOSTA is to ensurethat website operators like Backpage can be held civilly liable to their victims for their violationsof federal criminal law.

And thus, the retroactive clause is already in play. Assuming Backpage continues to fight this, you have to imagine it will note the serious constitutional problems with retroactive clauses like the one in FOSTA/SESTA.

But, that of course, depends on Backpage being around to fight this, and the company is gone thanks to the DOJ action. Oh, and apparently the company and its CEO have accepted plea deals to plead guilty to certain charges (though many other execs have pleaded not guilty).

Still, expect to see other civil lawsuits attempt to use the FOSTA/SESTA retroactive clause in the very near future.