InkedFur.com’s Furry Friday: FOSTA Parents Suck – Pounced.org and the Sex Trafficking Shutdown

Welcome to Inkedfur.com‘s Furry Friday here on Lawyers & Liquor, where it’s time to let out our inner technicolor zoo to run rampant over common sense and good taste.  For one day one each month I, the Boozy  Barrister, sprout the head of a badger and become the Boozy Badger to rant profanely about legal issues and news in the furry fandom.  So snuggle up to your favorite, unconvicted-of-any-crime fursuiter, settle in, and let’s get this Dead Dog dance started with this month’s discussion of…death.

While March has seen a lot of death in the fandom, we’re going to be talking today about the death of the …what is this here…furry dating site called Pounced.org.  A furry dating site? I thought that’s what Twitter was for. Huh. You learn something new every day, don’t you? I mean, with the number of furries showing their raging assholes on Twitter, I assumed…never mind. Let’s all turn into maw lovers and get right to the meat of the matter to discuss how the federal government swooped in to destroy the dating scene of those poor, lonely furs out there on their lonesome.

Go get a coffee or a cigarette.  This is gonna take a bit.

What Was Pounced.Org?

First, we should probably stop talking in the past tense.  Pounced.org isn’t dead.  It isn’t even on life support. It’s still kicking around, planning it’s dramatic comeback.  You can even see that they updated their site recently with a full explanation of what’s going on and how they’re working on getting back online.  It’s a read that makes my version of events pretty much useless, but we need to be clear here: Pounced.org does not appear to be finished, and in fact is planning a wonderful comeback which I’m sure will involve confetti cannons and dancing raccoons or some shit.  Because you assholes have a flair for the dramatic.

Fine.  What Is Pounced.Org

Right now? It’s a webpage that lists a lot of information on why a site with the same name was made inaccessible and a text listing of plans to bring the site back.  Why do you ask?

Look asshole…

Phrase your questions better. We’re teaching a lesson in effective examination tactics right now.

…What was the content and purpose of Pounced.org prior to March of 2018?

There we go.

Pounced.org was, prior to the events of March 2018, a free furry personals site where furries could go and put up personal ads to look for friend, lovers, what have you.  They got to make a profile and list personal ads, which were then searchable by other furries, and would make connections with each other through the site.  Think of it like EHarmony, but a little stranger and a lot fluffier.  It launched in 2003, and since that time was apparently the progenitor of many a happy (and no doubt quite a few unhappy) furry relationships.  In short, it was a nice little corner of the furry fandom where folks could meet each other.

Oh, that’s neat.  What happened to it?

Congress.

…Congress shut down a furry dating site?

Yeah.  I mean, it’s not like that was their specific intent.  Nobody in Congress was cruising the internet one day and came across Pounced.org and say “oWo, what’s this?  I’m gonna make a profile!  What’s that? Nobody’s responding to my ad for a hung taur looking for yiff and scritches in the D.C. area?  THIS IS A BLIGHT ON SOCIETY AND MUST BE STOPPED!”

Actually, you know what? That could be exactly what happened.  We don’t know. Maybe there’s a really pissed off raccoon sitting in the Senate right now who just needed a little love, but they didn’t sell the bill as a way to stop furries from finding love and friendship (trust me, you guys do that well enough on your own from some of the shit I’ve seen on FurAffinity).  They sold it as a way to stop sex trafficking.

Furries…were engaged in sex trafficking?

No, but the internet was.

Alright, we need to go over a couple basic legal concepts here that were in play before the most recent change of the law to limit shit.  Back in 1996 a little piece of legislation called the Communications Decency Act wound its way through Congress as part of a larger Telecommunications Act found as Title 47 of the United States Code (USC).  Chapter 5 of Title 47, found at 47 U.S.C. sec.  151-622 was known as the Communications Decency Act, and was a stunning example of the government screaming “For the children and trying to ban damn near anything that could be considered offensive or indecent on the internet to protect the prying eyes of youngsters…as if 90% of them weren’t sitting beside the computer with a bottle of Bad Dragon lube ready to rock and roll to some sweet, sweet sexiness.

Shortly after the whole thing was put in motion, though, the U.S. Supreme Court struck down pretty much all of the indecency provisions of the CDA, stating that it was too overbroad and would likely result in the restraint of speech made by adults, who are free to digest as much NSFW content as they damn well please so long as it doesn’t violate any other laws in doing so.  In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), with the now-retired Justice Stevens delivering the opinion of the Court, SCOTUS stated:

“We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”

Id.  at 874.

How does any of this relate to furries?

We’re getting there.  Hold your fucking sentient, anthropomorphic, and strangely attractive horses, and not by their puds, dammit.

Alright, so the indecency provisions of the CDA were struck down, and Congress when back to the drawing board to craft new, narrower restrictions, which you now see in the CDA itself.  But there was another bit of amending going on as well, and that was the amending to add protection for the providers of internet services, such as websites, that contain a large amount of user-created content.  Such as personals ads, internet forums, online auctions, chat room providers, instant messaging providers, etc.  This all got stuck under Section 230 of the CDA, which you can find at 47 U.S.C. sec. 230.  

The operative part of that section, for our purposes today, is 47 U.S.C. sec 230(c), which states:

(1)Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2)Civil liability No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

47 U.S.C. sec. 230(c).

What the hell does that mean?  Well, boiling it down into a nutshell, and relying on a huge number of cases from varying federal courts (though not the Supreme Court yet), it has generally meant that a website or web host can’t be held responsible for content that is created by its users and posted on the site by its users.  So if Mark the Marmoset starts posting hate speech and doxxing folks on FurryMUCK, for example, the MUCK itself may not be held criminally or civilly liable for any harm that results.

Or to take it out of the world of Furry and placing it in a real world context, let’s say you own a bar.  Two guys come to your bar, sit down, and start planning a murder in the corner.  Section 230 says that you as the bar owner aren’t liable for their speech, simply because it took place in a venue you provided to them, i.e., the bar.

Does that make it easier to understand?

Good, cause we’re gonna get a little more complicated now.

Traditionally, websites could lose Section 230 protection.

I mean, it wasn’t too easy to do, but it could be done.  See, Section 230 only protects the website from being held liable for the speech of other people on the site, and then only speech that the website had little control over the publication of.  We’re speaking very generally here, by the way, but essentially it was “A website can’t be liable for shit other people put on their forums or comments, especially if they can post that shit without anyone approving it first.”

But that didn’t, and doesn’t, mean the website is never liable.  For instance, if the website heavily editorializes comments and shit in a way that it transforms the user’s speech into the website’s speech, that could be used to defeat Section 230 immunity.  Likewise soliciting certain types of speech and shit can be viewed as asking for the website’s speech.  Here’s the difference between the two:  Under Section 230, I’m liable for the shit that appears here, right now.  But I have comments below, and unless I take some extraordinary action to transform it into my speech, I’m not liable for your comments!

Likewise, websites aren’t liable for good faith deletion or moderation of user-generated content either.  This doesn’t mean I can delete every comment, but if you scroll back up (I know, it’s so fucking difficult) and look at Sec. 230(c)(2) you’ll note that I, and other providers, are allowed to restrict and remove user content so long as we’re doing so in good faith and without facing civil liability.  Ain’t that neat?

So, that’s the gist of it. In general, prior to March 2018 the host or provider of an internet service generally wasn’t liable for content posted by a third-party on the site unless it took some action to give the content imprimatur (buy a fucking dictionary) of officiality.

WHAT. THE FUCK. DOES THIS. HAVE TO DO. WITH POUNCED.ORG?

We’re there now.  Calm the fucking down, you bevy of beautiful bastards.  Sometimes you have to understand how things were to understand why things are.

On February 27, 2018 the House of Representatives passed H.R. 1865, known as the “Allow States and Victims to fight Online Sex Trafficking Act of 2017,” or FOSTA for short.  FOSTA, which was approved by the Senate with no further amendments, seems like a very “for the children” and “for the good of the people” type of bill that states that websites which exist with the intent to allow people to engage in prostitution or facilitate people in doing so shouldn’t be entitled to Section 230 protection, and should be able to be held both criminally and civilly liable for doing so.  Additionally, if the site is operated with the intent to traffick five or more people or acts with reckless disregard of “the fact that such conduct contributed to sex trafficking.”

Wait, hold on.  They said “intent.” Are you saying Pounced.Org is really a cover for a sex trafficking ring all along and that’s why they closed down?

No, because “intent” is a question of degree.

For example, the intent of FOSTA appears to be to stop websites from allowing people to advertise prostitution services by threatening the hell out of them with severe penalties. And the people who wrote the law may have intended for the law only to apply to sites that are definitely in existence for that purpose.

But there’s this whole area of criminal law surrounding intent.  Basically, though, is that you need to know that if someone can foresee the outcome as being probable as a result of their action, they may be held to have the general intent for the outcome to occur.  That’s the gist of it for these circumstances.  This, by the way, is different from specific intent, which is more on the lines of intending to commit the act and the outcome.

Most crimes are general intent crimes, meaning you intended to commit the act, and the outcome was foreseeable but not necessarily your intent.  For example, I can intend to create a website that allows for personal ads, and it can be foreseeable that people may use it to advertise prostitution services, and therefore have the general intent to create a website that promotes or facilitates prostitution or sex trafficking without have the specific intent to do so.  These all get to the mens rea, by the way, the state of mind of the actor in criminal law, and it really is a whole complicated thing.

That’s not even getting into things like proving intent.  For example, if you run a website that has personal ads, and there’s a long history of sex workers using those ads to seek customers, and you’re aware of it even if you never seek direct confirmation of it, you can have the knowledge of the use imputed to you, and thus used to form your intent.  Think of it as the guy who goes to Mexico and is given a duffel bag to put in the back of his car and $10,000 to take it across the border without anyone saying “drugs.” Just because the guy never opens the bag and gets the actual knowledge of drugs doesn’t get him off the hook, because the court will impute the knowledge to him from the surrounding circumstances and history and use that to form general intent.

Can…Can we please get back to Pounced.

Yeah, sorry, law-geeking a bit there.

Alright, so it’s indisputable that certain online personal sites can and are used to facilitate sex trade work, either consensual or non-consensual.  We know this from sites like Craigslist, which have been reported as a virtual haven for sex trade workers (and those that force people into the sex trade) to seek customers.  This, by the way, is why Craigslist shut down their personals section immediately after the bill was passed in the Senate: there’s literally no way Craigslist can say “Hey, we had no idea this was a thing!”

And other sites, like Pounced.org, followed suit.  Why? Because even if they have no actual knowledge of the activities now punishable under FOSTA are taking place on their service, they know those activities can and do take place on like services and are panicking over their now-possible liability for it.

Now, there’s probably not a furry sex trade out there.  But I know of at least one time when someone literally was sending out a sign-up sheet for sexual encounters over certain services, and I’ve only been here a goddamn year.  So maybe it is happening.  And the only way to really disprove the intent is to vigorously monitor all the listings on your site, taking down any listings or ads that may be related to the sex trade.  Where you have a small site, such as Pounced.org, this is going to be virtually impossible.

Especially when the site is free and has no real verification method for the users to prove they aren’t a sex worker or sex trafficker.

That seems shitty.

It is.  And it’s shittier because the effect of the bill could be reached through more specific language, such as defining intent better, defining facilitate better, or defining “prostitution” better.  Instead, what we have now is forums and services shutting down areas where sex workers are talking to each other to discuss safety and protection issues while they ply their trade because it could be facilitating and the websites know what is happening.  We have sites like Pounced.org shutting the fuck down.  And it’s all happening because of a wise over-abundance of caution until such time as the law is made clear as to what is and is not intended and how it will be enforced.

In short, what we have is a law that could have the same chilling effect as the original Communications Decency Act in that it bars behavior that shouldn’t be barred.  Not “sex trafficking,” but rather the specter of anything that may be related in any manner to sex work, or could possibly be used to advertise of “facilitate” such work.

So this isn’t a furry issue.

It is and it isn’t.  It isn’t because it wasn’t directed at furries, but it is because furry is a predominantly online community that comes together through places like Pounced.org, and if FOSTA is applied in an overbearing way it could be used to chill such speech and greatly restrict websites.  Simply put, if a site can be used to engage in such activity as that barred under FOSTA, it now has to assess what that risk is and come up with methods to police themselves and the content of their users to prevent such usage as being imputed as intentional on the provider.

And we all know how well-heeled the furry community’s websites are, right? I’m sure they can get massive moderation teams and guidelines in place immediately.

Is Pounced.org coming back?

Maybe. It appears they’re talking to legal counsel (THEY’RE SMART!) to assess the risk and liabilities inherent to their operation in this brave new era of restricting what we do or say on the internet “for the children.”

Hopefully they’ll be back up and operational soon.

Back to your cages.

That’ll end it for this month’s Lawyers & Liquor Furry Friday.  Remember to swing by my sponsor for these posts, Inkedfur.com, to look at the wares they have for sale out there.  Otherwise, we’ll be seeing you again next month.  Now someone take me to the headless lounge, this shit’s getting hot.

-B. Badger

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