Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–GG v. Salesforce

May 27, 2022 · by Eric Goldman · in Content Regulation, Derivative Liability, Marketing

This is another lawsuit where the plaintiff claims to have been sex trafficked on Backpage. Backpage used Salesforce as its CRM vendor, so the plaintiff claims Salesforce should be liable for the victimization. I’m aware of two other decisions involving virtually identical allegations, Doe v. Salesforce and A.B. v. Salesforce. Salesforce’s motion to dismiss succeeded in the Doe case and failed in the AB case. It succeeds here on both Section 230 and prima facie grounds.

Section 230

ICS Provider. Salesforce qualified as an “access software provider” because “the support Salesforce provided Backpage involved the provision of technological capabilities—specifically, software that allowed Backpage employees to analyze and digest customer data as well as applications providing for the transmission of both internal employee communications and external customer outreach and support.”

The plaintiff argued that Salesforce only managed the customer relationships, not the content published on Backpage. The court responds: “managing those relationships did require Salesforce to analyze content—content provided by Backpage about its customers.” The court rejects the plaintiff’s argument that Section 230 only applies to defendants who “host publicly accessible platforms.” Cites to Fields v. Twitter, which held that 230 applied to the transmission of nonpublic messages; and Zango v. Kaspersky, which had rejected a similar argument. The court summarizes the plaintiff’s contention and its response:

Using [the plaintiff’s] logic, Backpage, as the actual host of the content in question, would be considered a provider of interactive computer services, while Salesforce, whose applications supported Backpage’s internal operations, would not. But the text of § 230 imposes no such requirement—an interactive computer service must simply permit users to interact with content, without any reference to what content. Without a textual basis or supporting case law, the Court declines to impose unilaterally a requirement that whether a defendant is an “interactive computer service” under § 230 depends on the nature of the claims against it.

Two points here. First, I’ve often explained that Section 230 means there is only 1 defendant with respect to any item of harmful content online. Everyone else gets immunity. Whoever that 1 defendant is in this case (my view: the advertisers on Backpage who uploaded the ads), it sure isn’t a downstream vendor like Salesforce. Even if Salesforce didn’t win on the “ICS provider” prong, it should win on the “ICS user” prong.

Second, the plaintiff’s argument reinforces the overreach of the lawsuit, targeting defendants so remote from the harmful content that somehow they would be beyond the protections of Section 230. (This reminds me of UMG v. Shelter Capital, where Veoh qualified for 512(c) but Veoh’s investors did not–that’s a bad safe harbor design because it gives plaintiffs an easy workaround that undermines the point of the safe harbor). If it had worked, the plaintiff’s arguments that Salesforce is outside 230’s immunity should cause the plaintiff to lose on the prima facie elements by showing how remote Salesforce was from any illegal activity. For example, if Salesforce can’t actually engage in content moderation of Backpage’s ads (either because it lacks the technical capacity or the contract didn’t permit it), then what was Salesforce supposed to do to mitigate the harms?

Publisher/Speaker Liability.

Plaintiffs suggest that Salesforce should have monitored Backpage’s use of Salesforce’s tools and deleted or restricted access to its software in response to illegal activity—in other words, that Salesforce acted as publisher regarding Backpage ‘s content on Salesforce’s own applications. And at least some of Plaintiffs’ claims relate to Backpage’s use of Salesforce’s CRM software to engage in online marketing communications with sex traffickers to expand Backpage’s customer base. But those claims would also treat Salesforce as a publisher…

Plaintiffs seek to hold Salesforce liable for the fact that Backpage used Salesforce software to cultivate sex traffickers as customers and grow the website’s reach among sex traffickers, ultimately resulting in the posting of the advertisement featuring G.G. This is a quintessential claim covered by § 230: it seeks to impose liability on an interactive computer service for third-party content that was published on an online platform….

Although Plaintiffs try to frame their claims in terms of Salesforce’s actions (namely, helping Backpage expand the site on which G.G.’s trafficker would eventually place the advertisements trafficking G.G.), Plaintiffs do not contend that they would have a claim against Salesforce regardless of what was posted to Backpage. Nor can Plaintiffs point to any distinct duty that Salesforce owed to Plaintiffs untethered from the third-party content. In effect, Salesforce could not satisfy its “alleged obligation” to Plaintiffs without altering either the content generated by Backpage by monitoring the use of its software and forbidding its use in certain ways, or by insisting that Backpage only hosted certain content on its own site. In other words, Plaintiffs claims are predicated on the notion that Salesforce should be held responsible for the existence
of third-party content, her advertisements—that is, they treat Salesforce as a publisher.

In other words, if Salesforce is legally compelled to tell Backpage how to run its content moderation function, then Salesforce is being cast into the publisher role.

(The court doesn’t discuss the “information provided by another information content provider” factor, although this seems like it ought to have been in play?)

The FOSTA Exception to 230. 1591 has higher scienter requirements than 1595, but some courts have accepted plaintiffs’ arguments that they only need to comply with 1595. This court, like me, doesn’t see this as a hard statutory analysis question: “the ‘most straightforward reading’ of this provision requires an exemption only ‘if the civil defendant’s conduct amounts to a violation of section 1591.’…the text, both by its plain terms and statutory structure, is clear that the FOSTA exemption applies only where the civil defendant’s actions violated § 1591.”

The plaintiff argued that this interpretation guts FOSTA. The court points out that FOSTA covers many other defendants beyond Internet services, such as hotels, and Congress heightened the plaintiff’s burden only with respect to a specific type of claim (holding services liable for third-party content)–but still allows the claim, which was foreclosed pre-FOSTA. The court also notes (like the JB court) that the SESTA Manager’s Amendment added the 1591 linkage to SESTA precisely to address the (well-founded) concerns that the 1595 scienter standard would create too much liability.

The plaintiff admitted that she couldn’t plead the 1591 scienter standard against Salesforce.

Prima Facie Case

The court says the claim also fails on the prima facie elements, not just Section 230. My standard reminder in these circumstances: modifying Section 230 wouldn’t change the results of this case.

Knowingly Benefit. 1595 only requires “a plaintiff to plead only that the defendant knew that it was receiving benefits (financial or otherwise) because of its participation in a venture that violated § 1591.”

Participation in a Venture. “the venture need only be one that violated sex trafficking law and the defendant need not directly participate in that violation.”

Knowledge. “the Court must decide whether Plaintiffs can successfully plead a claim under § 1595 by alleging that Salesforce knew or should have known that Backpage was violating sex trafficking laws, or if Plaintiffs must allege that Salesforce knew or should have known that G.G. in particular was being trafficked using the site. The Court concludes it is the latter.”

Putting these elements together, the court summarizes:

to bring a claim for liability under § 1595, a plaintiff must plausibly allege that a defendant (1) knowingly benefited, either financially or otherwise, from (2) participation in a venture, although such participation need not necessarily be direct participation in the sex trafficking, and that (3) the person knew or should have known violated § 1591 as to the plaintiff

The plaintiff can’t make the requisite showing of Salesforce’s knowledge about sex trafficking activity.

Salesforce may have provided the tools that Backpage used to build a business based on sex trafficking, Salesforce did not take part in the construction of the business itself…The mere fact that Salesforce’s software played a critical role in Backpage’s expansion, indeed, even if such expansion would not be possible without the capabilities provided by that software, is not enough to demonstrate Salesforce’s own participation in any venture with Backpage….

although the complaint contains multiple mentions of Salesforce providing Backpage with “personalized services tailored specifically to the needs of its illegal business,” Plaintiffs provide no examples of these services, or description, or even suggestion, of how Salesforce altered its software to better facilitate sex trafficking

The court dismissed the case with precedent. The court’s statutory analysis was painstakingly careful, so this opinion was built well for the inevitable appeal.

Implications

Tertiary Liability. Like several other FOSTA cases, this lawsuit sought to impose tertiary liability on Salesforce:

The primary wrongdoer: the advertiser who placed ads promoting sex trafficking victims.
The secondary wrongdoer: Backpage for publishing the ads.
The tertiary wrongdoer: Salesforce for providing technical support to the secondary wrongdoer.

Tertiary liability is a major expansion of FOSTA’s text, and its logic has no natural limits about the scope of potential defendants. Why not go after the electric company for providing the electricity to Backpage’s servers? Backpage’s landlord for renting them the facilities where they committed their secondary wrongdoing? Backpage’s Internet access provider? Backpage’s vendor for hosting its servers? etc. etc. It is a team effort to combat sex trafficking, but tertiary liability is a problematic way to assemble the team.

Swiss-Cheesing Section 230. When Congress deliberated about FOSTA, it was warned by many (including me) about the risks of adding new exceptions to Section 230. Those exceptions become a crack in Section 230’s dam that plaintiffs rush to fill and expand further. Here, the tertiary liability claim against Salesforce is way beyond anything Congress contemplated by carving back Section 230, yet here we are, with plaintiffs hammering on the FOSTA exception to 230 to reach very distant defendants. All of this litigation is taking place in response to a comparatively narrow Section 230 exception; a broader exception (like, say, the ridiculously expansive proposed exceptions in the SAFE TECH Act) will unleash so much plaintiff activity that it will undermine Section 230’s integrity.

Salesforce’s Attitude About Section 230. My ongoing reminder that Salesforce’s CEO, Benioff, has called for “abolishing” Section 230 at the same time his company repeatedly relies on it in court. Either put your money where your mouth is and stop defending on Section 230 grounds, or perhaps it’s time to rethink your public commentary about Section 230.

Case citation: G.G. v. Salesforce.com, Inc., 2022 WL 1541408 (N.D. Ill. May 16, 2022)

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Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–GG v. Salesforce

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