Section 230 Protects Craigslist from Sex Trafficking Claims, Despite FOSTA–JB v. Craigslist

This is an important early judicial interpretation of FOSTA. The court reaches several key conclusions, including that Section 230(c)(1) still preempts state civil claims and Craigslist did not “participate in a venture” with every advertiser of commercial sex. If this ruling stands, it will pose a serious barrier to the numerous lawsuits seeking to hold Craigslist accountable for its pre-2010 activities. (This opinion doesn’t discuss statute of limitations or whether FOSTA can be applied retroactively). However, this case inevitably will get appealed to the Ninth Circuit by whichever side loses, so that ruling will be the more authoritative conclusion.

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This is one of several pending civil lawsuits by sex trafficking victims against motels and online services. This plaintiff claims she was “advertised for sale” on Craigslist from 2007-10:

Plaintiff also alleges that “Defendant Craigslist knew that its erotic services section was well known to commercial sex customers throughout the United States as a place to easily locate victims for as commodities [sic], unpunished, anonymous, sexual abuse of children.”  Craigslist should have known that the posts of Plaintiff involved child sex trafficking due to the “scantily clad and partially nude photographs of minor Plaintiff.”  Instead, “Craigslist provided cover for advertisements of minors by requiring sex traffickers to click on the ‘posting rules’ page which has a line asserting ‘I am at least 18 years of age or older and not considered to be a minor in my state of residence,’” even though “Craigslist did nothing to verify the actual age of the person being advertised” and did not take any “meaningful initiative to verify the actual identity of the posters.”

Section 230. Craigslist qualified for the Section 230(c)(1) immunity for the plaintiff’s state law claims:

• Websites are ICSs
• The plaintiff alleged that Craigslist “advertised” the victim. This is a publisher claim.
• The plaintiff admitted that she posted the advertisements, confirming that Craigslist didn’t create them. Thus, the “only role that Plaintiff attaches to Craigslist is that of a publisher of posts created by third parties.” The court adds that “Craigslist’s requirement that a third-party creator of a post confirm that he or she is an adult does not support any inference of inducement or material contribution to the post.” (Cite to Dart v. Craigslist).

The court then discusses FOSTA, which was designed to exclude some sex trafficking claims from Section 230(c)(1). The court says the “plain language of [FOSTA] suggests that state civil claims are not carved out from the immunity provided by Section 230, even in sex trafficking cases.” The plaintiff cited some possibly contrary language in the legislative history, but the court says the statutory language is clear; and that legislative report focused on state criminal, not civil, enforcement.

The court then addresses one of FOSTA’s major drafting quirks. FOSTA added 230(e)(5) to exclude three categories of claims from 230(c)(1): (1) federal civil claims under 1595, (2) state criminal claims that are coextensive with 1595, and (3) state criminal claims that are coextensive with 2421A. Section 230(e)(5) does not exclude federal civil claims under 2421A, even though that would be a natural parallel to exclusion of 1595 civil claims. Why this imbalance? The answer is because FOSTA grafted two separate bills into a “worst-of-all-worlds” superset, and Congress didn’t fix this anomaly in the combined bill. Indeed, Congress probably didn’t even understand they were creating the anomaly because the complexity of the worst-of-all-worlds FOSTA overwhelmed everyone, including its drafters and sponsors.

The plaintiff argues that this 1595/2421A imbalance is irrational, so Congress must not have intended for the explicitly enumerated exclusions in Section 230(e)(5) to be the comprehensive list of Section 230(c)(1) exclusions. The court disagrees. Because of the importance of this issue, I’ll quote extensively:

Plaintiff also argues that Section 230(e)(5) cannot be understood as an exhaustive list given that such a reading “would mean that the new federal civil cause of action created by FOSTA— Section 2421A—could never be used because it, too, is not listed in subsection (e)(5).” Section 2421A is a federal statute criminalizing the “[p]romotion or facilitation of prostitution and reckless disregard of sex trafficking.” Federal criminal statutes have always been outside of Section 230’s reach. Section 2421A(c) additionally provides a civil cause of action for “[a]ny person injured by reason of a violation of section 2421A(b),” permitting the “recover[y of] damages and reasonable attorneys’ fees.”

Importantly, although the civil cause of action is not specifically listed in the CDA amendment, that provision was enacted at the same time as Section 230(e)(5). The Court agrees that Congress could not have intended to exclude the new civil action created as part of the FOSTA legislation, but it does not follow that Section 230(e)(5)’s carve-out list should also be understood to include state civil claims. State sex trafficking civil causes of action existed prior to the amendment, and were specifically considered by Congress (as noted in the legislative history discussions cited above, see H.R. Rep. No. 115-572 pt. 1 at 1–3), but Congress ultimately ended up not including them in the amendment. On the other hand, Section 2421A(c) was passed contemporaneously, and the Court is not aware of any Congressional discussion or consideration of the new federal civil claim in the context of the CDA. Thus, Congress’ decision not to list Section 2421A(c) (for whatever reason) does not undermine the conclusion that Section 230(e)(5) comprehensively sets out the scope of the intended immunity carve-out, at least as to state civil claims.

The court also rejects that FOSTA’s “sense of Congress” statements change the analysis.

As a last-ditch argument, the plaintiff argues that the Section 230(e)(3) preemption of state claims doesn’t apply because of its specific wording. The court disagrees.

Thus, the court summarizes:

Given the clarity of the plain language of the amendment of the CDA, and the ambiguity of the legislative history relied upon by Plaintiff, the Court thus finds that the CDA does apply to state law civil sex trafficking claims

A different court (ML v. Craigslist) reached the same conclusion, but this court’s analysis is more thorough and detailed

For now, the outcomes are that (1) Section 230(c)(1) still applies to state civil claims related to sex trafficking, and (2) Section 230(c)(1) applies to federal civil claims under 2421A. This all makes sense–if you understand FOSTA’s history as a poorly drafted Frankenstein bill.

Section 1595 (TVPRA). This federal civil claim is expressly not covered by 230(c)(1) per 230(e)(5)(A). The court lays out the plaintiff’s elements:

To establish liability under Section 1595, Plaintiff must establish that (1) Craigslist knowingly benefited financially or by receiving anything of value (2) by participating in the sex trafficking venture (3) that Craigslist knew or should have known was a violation of the TVPRA.

Craigslist argued that 1591 defines “participation in a venture.”  The court disagrees:

Other courts defining participation under § 1595 have, “in the absence of direct association,” required “a showing of a continuous business relationship between the trafficker and the [defendant] such that it would appear that the trafficker and the [defendant] have established a pattern of conduct or could be said to have a tacit agreement.”

Nevertheless, the court says the plaintiff hasn’t properly alleged Craigslist’s contribution to the venture. The plaintiff alleged Craigslist’s “but for” causation, but that wasn’t enough:

[the plaintiff’s] allegation necessarily suggests that Craigslist enters into tacit agreements with all traffickers (or even all posters) that use its website, and there is no factual basis pled that makes this claim plausible. To conclude otherwise would mean that “all web[-]based communications platforms have a legal duty to inspect every single user-generated message before it is communicated to a single person or displayed to the public,” lest such platforms be deemed to have participated in the venture. The Court agrees with Craigslist that there is no indication that Congress intended to create such a duty, or that it would be reasonable in light of the volume of posts generated by third parties daily

Craigslist also contested the scienter requirement of the trafficking activity. The court sidesteps the legal standard for that, but gives a crazy hypothetical to illustrate an outer boundary: “The Court can envision a circumstance, for example, in which a website operator openly and knowingly makes a deal with sex traffickers to support the venture by posting advertisements featuring trafficked minors in exchange for a cut of the proceeds. In that situation, where the website is plainly participating in the trafficking venture, it seems entirely inconsistent with Congress’s purpose in passing the statute to provide the website with a defense to a claim brought by a victim of the venture just because it did not know in advance the names or identities of the particular people who would end up being predictably victimized in this way.”

The court concludes:

The Court recognizes that there is some tension between the TVPRA’s requirements and FOSTA’s general purpose. FOSTA’s amendment of the CDA sought to make it easier to hold websites accountable. But the TVPRA’s requirement that the defendant participate in a venture makes actions against websites such as Craigslist difficult to establish, given that such sites receive billions of posts and interaction with a specific venture may be hard to show. Importantly, however, Congress did not amend Section 1595 when it passed FOSTA, and the Court must interpret the TVPRA elements on their face. Because Craigslist cannot be deemed to have participated in all ventures arising out of each post on its site, Plaintiff must allege facts supporting the inference that Craigslist made a tacit agreement with the sex traffickers who victimized Plaintiff, and she has not done so.

The plaintiff gets a chance to replead this claim.

Implications.

In April, in M.L. v. Craigslist, a court denied Craigslist’s motion to dismiss in a similar case by a sex trafficking victim. I can think of at least three reasons why the cases reached different conclusions:

• Venue. ML is in W.D. Washington, while this case is in N.D. California. However, both courts roll up to the Ninth Circuit, so they should be applying the same law.
• Different Facts. The ML plaintiff apparently made different factual allegations. Both plaintiffs’ factual allegations are likely insufficient, but perhaps JB’s factual allegations were more deficient.
• Different Judges’ Attitudes Towards 12(b)(6) Motions. The judge in the ML case felt compelled to accept the allegations as true on a motion to dismiss, without properly scrutinizing them. Because of the weak factual allegations in JB’s complaint, the court is able to find Section 230 even though accepting the allegations as true. However, I suspect the ML judge would have denied Section 230 if it had been hearing the JB case, as a way of ensuring that every plaintiff has its day.

Though ruling for Craigslist, the JB judge made some statements of interest to plaintiffs. The judge acknowledged that “FOSTA’s amendment of the CDA sought to make it easier to hold websites accountable” and said that “Congress could not have intended to exclude the new [2421A] civil action created as part of the FOSTA legislation.” These musings surely will be cited by future plaintiffs. At the same time, this judge also accepted the policy argument that Craigslist can’t be liable for every posting–a key finding that would require plaintiffs to produce better evidence than they may have.

Seeing these lawsuits against Craigslist reiterates how FOSTA’s consequences are weird and likely unexpected. Right now we’re seeing a lot of anti-sex trafficker civil cases in the courts, including substantial litigation against hotels/motels. Perhaps those cases will bring about reforms in that industry (though they were already working on self-regulatory efforts when FOSTA passed),. In contrast, suing Craigslist won’t really change anything given that it’s been out of the industry for a decade and its closest competitor, Backpage, is also permanently gone. Meanwhile, FOSTA prompted law enforcement officers to redirect their efforts away from rescuing sex trafficking victims and towards arresting other commercial sex workers. I don’t really see who benefits from the lawsuits against Craigslist; at most, the beneficiaries will be a few victims who succeed in court and their lawyers. Maybe Congress still views cash awards to a small number of people as a FOSTA win. To me, any such benefits are vastly outweighed by FOSTA’s structural disadvantages.

Case citation: J.B. v. G6 Hospitality LLC, 2020 WL 4901196 (N.D. Cal. Aug. 20, 2020)