New Civil FOSTA Lawsuits Push Expansive Legal Theories Against Unexpected Defendants (Guest Blog Post)

January 2, 2020 · by Eric Goldman · in Content Regulation, Derivative Liability, Marketing

by guest blogger Alex Yelderman

In the year and two-thirds since it was signed into law, FOSTA has reputedly shattered online networks that sex workers relied upon to keep safe, crippled human trafficking investigations, and scared websites into taking down large swaths of material unrelated to sex trafficking. This is true despite the fact that it has never been enforced or used in court: the feds have not charged anyone under its new provision, 18 U.S.C. § 2421A; no state attorneys general have taken advantage of its carveout to Section 230 of the Communications Decency Act for certain state crimes, and no civil trafficking plaintiffs have raised it in federal court.

A case challenging FOSTA on constitutional grounds was dismissed on grounds that none of the plaintiffs had standing to sue, because none could demonstrate a credible threat of prosecution, civil liability, or redressable harm. (That ruling is currently on appeal to the DC Circuit.) The district court essentially reassured the plaintiffs — educators, advocates, and a massage therapist, among others — that “key textual indications ma[de] clear that FOSTA” was modest in its reach, and that they had nothing to fear.

Three recently-filed civil lawsuits have soundly refuted the court’s assessment. A quick refresher: among other things, FOSTA eliminated Section 230 protection for defendants sued under 18 U.S.C. § 1595 — the federal civil cause of action for human trafficking — thus paving the way for federal lawsuits against intermediaries that host (but do not create) ads for trafficked sex. (Prior to FOSTA’s passage, website defendants successfully raised Section 230 as a defense to liability in multiple cases, including one in the First Circuit.) The first federal human trafficking claims against intermediaries — that is to say, the first claims that will almost certainly implicate FOSTA’s carveout to Section 230 — were not filed until this fall.

(Confusingly, in the aftermath of FOSTA’s passage, plaintiffs filed a rash of trafficking suits against websites under state law that didn’t take advantage of FOSTA — a seemingly odd choice, given that websites retain full Section 230 immunity when sued under state trafficking provisions.)

Two of the federal cases that will potentially implicate FOSTA were filed in state courts, one in Washington and the other in California. Along with common-law tort claims, the complaints allege violations of various state laws. (Both cases also name several hotels as defendants.) In November, the Washington plaintiffs amended their complaint, adding a claim under 18 U.S.C. § 1595. Craigslist then removed the case to federal court, on grounds that 18 U.S.C. § 1595 creates a federal (not state) cause of action. (M.L. v. craigslist, Inc. 3:19-cv-06153 (W.D.Wash.). See the complaint). The California case, originally filed in September, included federal trafficking claims from the start, and craigslist also removed it to federal court. (J.B. v. G6 Hospitality, LLC, (3:19-cv-07848 (N.D.Cal.). See the complaint).

The cases are essentially the same, with sections of their respective complaints copied verbatim. The complaint in M.L. provides an overview of how craigslist works: users are presented with advertisements in “a choice of geographic areas,” and the advertisements include “a specified number of photographs appears per page along with contact information and a general description of” the relevant location. This interface, plaintiffs claim, “made it easy for sex traffickers to promote their adult victims and minor children across the nation according to supply and demand,” through “thousands and thousands of sex-trafficking and illegal prostitution advertisements.”

The plaintiffs do not allege that craigslist knew anything about them specifically being trafficked — in fact, they count themselves among “thousands of victims” — but rather claim that the website was aware “that its erotic services section was well known to commercial sex customers throughout the United States as a place to easily locate victims for [SIC] as commodities, unpunished, anonymous, sexual abuse of children” and that once craigslist had been put “on notice of the human sex trafficking” (“from numerous sources, including but not limited to; lawsuits, government action, public outcry, news media, victims, activities and employee observation”), its ongoing operation “amounted to a venture with sex traffickers to efficiently market victims such as [the] Plaintiff.” (emphasis added)

This is a radical theory of liability, and raises the question: did FOSTA’s definition of “participation in a venture,” codified in 18 U.S.C. § 1591(e)(4), eliminate the requirement that federal trafficking defendants (including, now, intermediaries) have actual knowledge of trafficking? The government in Woodhull assured that court that “FOSTA changed nothing about Section 1591’s scienter standard,” and that a plaintiff “cannot credibly fear criminal or civil liability [if] it has no specific knowledge about the content of any of the material it obtains” or “be prosecuted under FOSTA [if] it has no knowledge about any individual webpage nor criminal intent.” (Defendants’ reply and supplement at 7, 8, emphasis added)). But even if craigslist ends up prevailing, the fact that the cases were filed at all sounds the alarm on FOSTA’s reach, and shows the Woodhull plaintiffs’ fear to be entirely reasonable.

(Another note: In both cases, the allegations relate only to conduct that predated FOSTA’s passage by many years. While FOSTA does purport to apply to preenactment conduct, that provision is unlikely to withstand a constitutional challenge.)

The third case, Doe v. The Rocket Science Group LLC, 1:19-cv-05393 (N.D.Ga.) (see the complaint), was filed in Georgia by an attorney who has also sued Facebook, Instagram, Backpage, and Salesforce, among others, for trafficking under various state laws. (Some of these cases are ongoing; the charges against Salesforce were dismissed due to the Section 230 immunity.) This case alleges that MailChimp — a marketing platform — “made available its marketing resources and expertise” to a Backpage copycat website and that “MailChimp’s marketing relationship with YesBackpage makes it responsible for its natural consequences — the sex trafficking of Jane Doe.” (Doe v. MailChimp complaint at 12). This view of “natural consequences” is breathtaking. Once MailChimp became “[a]rmed with knowledge of activity occurring through YesBackpage,” any services performed for the website would presumably constitute “participation in a [sex trafficking] venture.” There is no limiting factor in sight.

When sex trafficking is somehow construed as the “natural consequence” of a virtually any action, virtually no person or entity is safe from the threat of liability. The three post-FOSTA federal trafficking lawsuits against websites are examples of the problem, but there is reason to worry about a larger trend. In the past several months, dozens of plaintiffs have sued large hotel chains on an essentially similar theory of liability imputed by general knowledge. FOSTA enabled these suits by amending 18 U.S.C. 1591 to define “participation in a venture” as “knowingly assisting, supporting, or facilitating a violation” of federal sex trafficking law. Many sounded the alarm on how this would affect websites, but little attention was paid to how this provision could be weaponized more widely. In fact, the rising hysteria about hotels parallels the outrage at tech companies that accompanied the first trafficking lawsuits against them. Some of the same personal injury attorneys are now leading the charge against the hotels, building cases and promoting policies that will once again put marginalized populations — including trafficking victims — at greater risk.

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New Civil FOSTA Lawsuits Push Expansive Legal Theories Against Unexpected Defendants (Guest Blog Post)

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