As Expected, Those Who Pushed For FOSTA Are Now Looking To Kill Off Porn
A few years back, when the campaign to use FOSTA (then called SESTA) as a way to chip away at Section 230 of the Communications Decency Act by creating a misleading moral panic around "sex trafficking" was in full swing, we pointed out that it was really a precursor to trying to outlaw all pornography. I highlighted how a key group pushing for FOSTA, the National Center on Sexual Exploitation (NCOSE), didn't even bother to hide that its real target was outlawing all pornography. NCOSE, as we pointed out, started life as "Morality in Media" and only changed its name later when it realized that everyone was ignoring them acting like fussy prudish pearl-clutchers, and decided that if they pretended they were about "exploitation" it would give them more credibility.A key part of NCOSE's campaign is to lump porn, prostitution, and "sexual objectification in media" into the exact same bucket as child abuse and sex trafficking, even though there's a massive difference there. But it shouldn't come as any surprise that as NCOSE has now expanded to create an "International" (ICOSE) branch, it has done so by kicking off a silly program demanding that credit card companies stop working with porn sites like Pornhub. Of course, in true NCOSE fashion, it insists that porn sites are really engaged in sex trafficking and child abuse:
The letter alleges it is impossible to "judge or verify consent in any videos on their site, let alone live webcam videos" which "inherently makes pornography websites a target for sex traffickers, child abusers, and others sharing predatory nonconsensual videos"."We've been seeing an increasingly global outcry about the harms of pornography sharing websites in a number of ways in recent months," said Haley McNamara, the director of the UK-based International Centre on Sexual Exploitation, the international arm of the NCOSE and a signatory of the letter."We in the international child advocacy and anti-sexual exploitation community are demanding financial institutions to critically analyse their supportive role in the pornography industry, and to cut ties with them," she told the BBC.As Elizabeth Nolan Brown at Reason points out, this is all a repeat of the same old playbook: lumping in non-nefarious practices with much more nefarious (but also much rarer) practices, and then demanding that credit card companies disengage. These campaigns can sometimes be effective, because credit card companies tend to have little spine and freak out that people might make them look bad for processing payments.
This isn't the first time activists have gone after the ability of websites to process payments related to sex work. When Craigslist and later Backpage were the moral panic's big targets, advocates including Illinois sheriff Tom Dart lobbied companies to stop doing business with these websiteseven though government officials and advocacy groups had earlier asked Craigslist and Backpage to accept credit card payments because they thought it would make tracking customers easier."But think of the children..." has long been a successful lobbying and public pressure strategy, but at some point people are going to realize that when what you really fear is consensual nudity, maybe you've gone a bit too far.
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posted at: 12:00am on 20-May-2020
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Minnesota's Top Court Says Hotel Guest Records Are Protected By The State's Constitution
Minnesota's top court has redefined the contours of the Third Party Doctrine for the betterment of the state's residents and visitors. [h/t FourthAmendment.com] The case deals with hotel/motel guest records, which have historically been given almost no legal protection.The argument against protection is that guests give up this information voluntarily to private companies. But you can't get a room without giving up this information, so it's not nearly as voluntary as the government portrays it. This came to head in the US Supreme Court back in 2015. The nation's Supreme Court decided -- very narrowly -- that a Los Angeles ordinance giving police officers warrantless access to guest records violated hotel owners' rights by not giving them any way to challenge demands (other than going to jail).The Minnesota Supreme Court does not rely on this decision despite reaching a conclusion that results in better protections for hotel guests. The difference between the two cases is the entity petitioning the court. In the US Supreme Court case, it was motel operators arguing warrantless access violated the Fourth Amendment, if not California's own Constitution. In this case, it's a guest arguing against the warrantless access to his records -- something the Minnesota court points out in a footnote. From the decision [PDF]:
The court of appeals also concluded that Leonard erroneously relied on City of Los Angeles v. Patel, 576 U.S. 409, 135 S. Ct. 2443 (2015). State v. Leonard, 923 N.W.2d 52. Patel involved a challenge by hotel operators, not hotel guests, concerning the operators’ constitutional rights, therefore avoiding the issue of the third-party doctrine.Nevertheless, the Third Party Doctrine is explored by the state court, leading it to a conclusion that narrow that doctrine's reach. The resulting conviction for check forgery began with nothing but a fishing expedition.
Law enforcement officers arrived at a Bloomington hotel on August 14, 2015, for a hotel interdiction. The officers were not responding to a particular call. Without a warrant and without any individualized suspicion of criminal activity, the officers told the clerk on duty that they wanted to examine the guest registry and to be provided with the name of any guest who paid in cash.State law says all hotel operators must collect this information and make it available to law enforcement. If they don't (like in the city of Los Angeles), the hotel operators can be charged with a crime. But this isn't about the hotel operator, who wasn't involved in this challenge of a law enforcement search. It's about the defendant, who argued a warrantless, suspicionless search of hotel records violated the state's Constitution.This was the end result of the officers' perusal of hotel records.
The officers then ran a background check and found that Leonard had prior arrests for, among other things, drugs, firearms, and fraud. Based on this information, the officers developed an individualized suspicion that Leonard was involved in criminal activity and decided to conduct a “knock and talk” at the door of Leonard’s hotel room. When Leonard heard the officers knock, he opened the door and gave them limited consent to search the room, but withheld access to his laptop, cell phone, and a file folder where several checks were visible. The officers subdued Leonard through a physical struggle after he tried to flee. After securing a search warrant, the officers discovered over $2,000 worth of suspicious checks paid to the order of “Spencer Alan Hill,” over $5,000 in cash, and check-printing paper.Paying in cash shouldn't be treated as reasonable suspicion of criminal activity. Perfectly innocent people often engage in this activity, if only to lower their digital footprint. Here's another excellent footnote from the court:
The dissent contends that Leonard did not exhibit a subjective expectation of privacy in his sensitive location information. We disagree. In a world of electronic money transfers using debit cards, credit cards, and other electronic means of payment, Leonard’s cash payment evidences an intent to conceal his presence at the hotel.Both the trial court and the state appeals court found in favor of the government. They said warrantless, suspicionless searches of hotel guest records did not violate the state's Constitution, which prohibits "unreasonable searches." The top court disagrees.First off, the officers had no compelling reason to show up at the hotel to demand records.
The Bloomington Police officers had never heard of Leonard when they arrived at the hotel. They had not procured a warrant to search anything. Nor were they called to the hotel by its employees because of concerns regarding any particular guest. Thus, it is undisputed that they acted without individualized suspicion when they conducted the hotel interdiction and examined the guest registry.The court goes on to say that even though this fishing expedition resulted in the discovery of criminal activity, there are several reasons for people to conceal their identity from hotel operators and several reasons one's privacy might be unreasonably invaded by a suspicionless search of hotel records.
Imagine instead that Leonard had stayed overnight at the hotel to attend a political or religious conference in the hotel ballroom, or that he had stayed overnight before a medical appointment in hopes of keeping a diagnosis private. In these examples, the guest’s highly sensitive location information is revealed, regardless of what actually occurred in the hotel room. That such information would be accessible to the government through a fishing expedition, where the hotel guest was a stranger to law enforcement before the officers’ random search, offends our core constitutional principles.The court says guest records are sensitive information. As such, they cannot be swallowed up by the Third Party Doctrine. The court doesn't create a warrant requirement, but does say officers need to have something more than an excessive amount of free time on their hands before demanding access to guest records.
We hold that the law enforcement officers conducted a search under Article I, Section 10 of the Minnesota Constitution when they examined the guest registry. We hold further that law enforcement officers must have at least a reasonable, articulable suspicion to search a guest registry.Part of the underlying discussion pits society's view of the term "reasonable" versus the government's very liberal interpretation of this term. The government comes out on the losing end here.
Simply put, we think that most Minnesotans would be surprised and alarmed if the sensitive location information found in the guest registries at hotels, motels, or RV campsites was readily available to law enforcement without any particularized suspicion of criminal activity.The court further points out that its declaration that access to guest records does not mean "access without any articulable suspicion" will not keep cops from busting criminals.
Nothing about our decision prevents law enforcement from partnering with hotels to help staff members recognize signs of trafficking or other crimes. And nothing about our decision prevents hotel operators from contacting law enforcement to relay suspicious observations. If such observations provide the officers with reasonable, articulable suspicion of criminal activity, they may examine the sensitive location information found in a guest registry.The conclusion is this: the state's Constitution prohibits suspicionless searches, even when read in conjunction with ordinances regulating the hotel/motel industry. While this industry may be subject to more law enforcement scrutiny than most, that fact does not eliminate Constitutional protections granted to residents and visitors. The evidence disappears, along with this source of law enforcement fishing expeditions. Staying somewhere other than your own home does not eliminate privacy protections.
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posted at: 12:00am on 20-May-2020
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