Visa, MindGeek, and Liability

[Jacob]

Came across this on my twitter: https://twitter.com/BillAckman/status/1553510104200351746

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MindGeek is (one of) the largest providers of internet porn. It is defending against lawsuit for hosting child porn.

The judge found that visa is culpable, essentially (if I got it right) because they provided the means for MindGeek to monetize the porn even after knowing that MindGeek hosts child porn.

[The Minsky Moment]

It's not a finding of culpability, it's a finding that Visa could be found liable if the plaintiff can prove the facts alleged in the complaint.  Because Visa was seeking to dismiss the case on the pleading (i.e before any disclosure or pre-trial process), the facts in the plaintiff's complaint are all assumed to be true at this stage of the case.  (and there are some horrifying facts pled in the complaint).

The trafficking statute includes a conspiracy provision - so agreeing to support a company that one knows is profiting off participating in a sex trafficking venture can make one liable.

[The Minsky Moment]

Defense team for MindGeek is an interesting mix of business litigators and white-collar defense specialists.  Some tough decisions to be made on 5th amendment privilege may be ahead.

[DGuller]

It sounds like a good thing in theory to hold Visa liable, but I think it's actually a very bad thing.  Sure, going forward, Visa will be more risk averse, but you have no recourse against Visa's risk aversion, whereas you have recourse against government actions.  They can just say that they don't want to do business with you because the risks are considered too high, and you're at the very least going to take a bit hit as a business.

Individual freedom requires you to have a recourse against all entities that can unilaterally fuck with you making a living, not just the ones that are considered part of government.

[The Minsky Moment]

Visa's enormous power over small business stems from the fact that payments is an industry under private, oligopolistic control (although starting to weaken).  That's a policy choice not a necessary feature or outcome.

I don't buy the argument that a company should get a pass on criminal conspiracy (assuming the allegations are proven) because if they don't get their GOJF card they will respond by bullying legitimate small businesses more.  It seems to me there are other more optimal solutions to that problem.

[DGuller]

Visa's enormous power over small business stems from the fact that payments is an industry under private, oligopolistic control (although starting to weaken).  That's a policy choice not a necessary feature or outcome.

I don't buy the argument that a company should get a pass on criminal conspiracy (assuming the allegations are proven) because if they don't get their GOJF card they will respond by bullying legitimate small businesses more.  It seems to me there are other more optimal solutions to that problem.

The problem is that I don't think there was any criminal conspiracy.  I don't think the likes of Visa intentionally seek out the child porn money.  What most likely happened was a breakdown in the process and/or communication somewhere, which is always a possibility in large corporations, especially ones that are monopolistic.  Visa can just decide that since no process involving humans is fool-proof, they should just avoid some risks where the failure of the process can be so catastrophic.

[The Brain]

It's not a finding of culpability, it's a finding that Visa could be found liable if the plaintiff can prove the facts alleged in the complaint.  Because Visa was seeking to dismiss the case on the pleading (i.e before any disclosure or pre-trial process), the facts in the plaintiff's complaint are all assumed to be true at this stage of the case.  (and there are some horrifying facts pled in the complaint).

The trafficking statute includes a conspiracy provision - so agreeing to support a company that one knows is profiting off participating in a sex trafficking venture can make one liable.

Do other statutes contain similar conspiracy provisions? Is there any expressed principle regarding the bar for having one?

[alfred russel]

First they came for abortion, and i said nothing.

Then they came for porn, and oh boy to the ramparts people!

[The Minsky Moment]

Do other statutes contain similar conspiracy provisions? Is there any expressed principle regarding the bar for having one?

Conspiracy provisions are pretty common. What is an interesting about the trafficking law is that a company can be held directly liable for "participation" in a trafficking venture, even if they don't engage in trafficking. That expands the scope of what a conspiracy can entail and practically it means that liability can reach a party who is two steps removed from the actual sex trafficker, as is alleged vs. Visa here.