The 7th Circuit’s Section 230 Jurisprudence’s Impact on FOSTA Cases

Last August, in GG v. Salesforce, a split Seventh Circuit panel ruled that Salesforce didn’t qualify for Section 230 in a FOSTA case. I never blogged that opinion for two reasons. First, it came at a busy time (I was just ramping up for the semester). Second, the opinion was so clearly wrong and garbled that I expected the Seventh Circuit would take the case en banc and issue a more coherent and less terrible opinion that I would then blog. In October, the Seventh Circuit denied an en banc rehearing, leaving the jurisprudential mess in place.

I can’t bring myself to go back and blog that opinion now. I’ll leave an analysis of that ruling to hyper-motivated readers. However, with two recent cases citing it, we can start to evaluate the ruling’s effects.

Doe (S.M.A.) v. Salesforce, Inc., 2024 WL 1337370 (N.D. Tex. March 28, 2024)

This case involves the same allegations as the GG v. Salesforce case. A sex trafficking victim was allegedly promoted on Backpage, and Salesforce should be liable for that promotion because it was a vendor to Backpage.

[Readers with good memories will recall that I have blogged several other cases against Salesforce with similar allegations, with mixed results in court. I have noted how these cases seek to impose tertiary liability, i.e., the wrongdoer is the sex trafficker, the secondary violator is Backpage, and the tertiary violator is Salesforce. We should carefully scrutinize the extension of liability to tertiary violators because at some point the liability becomes boundless and vendors cannot work with any customers for fear of incurring unmanageable liability. The GG v. Salesforce opinion leaned into tertiary liability in a way that potentially swept in very distant vendors].

Echoing the GG v. Salesforce decision closely, the court concludes that Salesforce doesn’t qualify for Section 230 immunity in the FOSTA case. Salesforce invoked the Fifth Circuit’s Doe v. MySpace ruling, which is binding on this court (whereas the GG decision is not). The MySpace precedent is shaky in the Fifth Circuit after the recent Doe v. Snap litigation. The court sides with the GG ruling nonetheless, saying the MySpace case involved publishing (an ahistorical conclusion–the plaintiffs sought to hold MySpace liable for negligent age verification) whereas Salesforce’s liability “did not stem from defendant’s publication of content, nor did plaintiffs challenge a policy which implicated the defendant’s publishing function….Salesforce, however, did not publish the sex-trafficking advertisements at issue here or otherwise exercise editorial control over this content, and Plaintiffs do not seek to hold Salesforce liable for doing so.”

Putting aside the mischaracterization about what the MySpace case said and why, it’s impossible to justify this distinction. Both the MySpace and Backpage decisions trace their ultimate liability to the publication of content (the MySpace messages and the Backpage ads, respectively). Section 230 says there can be only one defendant for those items of third-party content, and it isn’t the tertiary player Salesforce. The GG court got that wrong, and now the bad conclusion is spreading to Texas.

(I am incapable of talking about Salesforce being denied Section 230 immunity without snarkily reminding you that Salesforce’s CEO, Benioff, myopically called for the repeal of Section 230. Still hate 230, Benioff?)

Without Section 230, Salesforce nevertheless gets its motion to dismiss. The court says the claim fails on its prima facie elements because “Plaintiffs have failed to establish that Salesforce had constructive knowledge that Backpage violated relevant sex-trafficking laws as to Plaintiff.” The court explains: “If participant liability could attach without any knowledge the venture committed the specific violation sued upon, then § 1595(a) would impose strict liability for participants in the event they have constructive knowledge of any violation.” (This is a typical dilemma with constructive knowledge standards–constructive knowledge of “what”?).

The court says the plaintiff didn’t meet this standard:

while the allegations are sufficient to charge Salesforce with constructive knowledge of the fact that Plaintiffs were advertised on Backpage’s platform, Plaintiffs have failed to demonstrate that Salesforce had constructive knowledge that those advertisements were violative of § 1591

I question the first part of the court’s conclusion. The court says “Given Salesforce’s knowledge of the nature of Backpage’s business and the fact that Salesforce had access to content on Backpage’s platform, the Court may infer that Salesforce should have known that Plaintiffs were advertised.” That’s a pretty expansive inference, no? The court seems to be saying that Salesforce should have “known” the identities and details of every person featured in every ad run by just one of its thousands of customers, even though odds are no Salesforce employee ever looked at any of that content.

And yet, Salesforce avoids liability because “knowledge that Plaintiffs were advertised for sex does not, by itself, amount to knowledge of a violation of § 1591….Plaintiffs must
separately show that Salesforce knew or should have known that Plaintiffs would be forced to engage in commercial sex acts through force, fraud, or coercion,” and I guess Salesforce’s omniscience about its customers’ advertisers’ featured individuals didn’t extend that far. The court explains:

the Complaint alleges facts which are sufficient to have put Salesforce on notice of a widescale sex trafficking problem on Backpage’s platform…However, in this case, there is crucial a distinction between knowledge that sex traffickers used a website and knowledge that the website itself is a sex trafficker—here Plaintiffs only allege that Salesforce participated in a venture with Backpage, not the street-level traffickers. Thus, the fact that Salesforce may have had knowledge that sex traffickers used Backpage to violate § 1591 is insufficient because Salesforce did not participate in a venture with these traffickers.

Tertiary liability is a doctrine too far for this judge, even after all of the plaintiff-favorable inferences made along the way.

Note 1: As I have lamented before, yes, FOSTA cases are routinely this baroque and confusing.

Note 2: For those of you tracking such things, this is another case where modifying Section 230 would not change the outcome. Indeed, Congress expressly amended Section 230 to facilitate the plaintiffs’ claims, and the outcome is still a defense win. Then again, the plaintiffs have the ability to amend the complaint, so maybe they can recharacterize Salesforce’s omniscience enough to satisfy this judge. Furthermore, an appeal of this case will go to the Fifth Circuit, and I can easily imagine they will mangle the law as they usually do.

* * *

Unknown Parties v. Google LLC, 2024 WL 1892291 (N.D. Cal. April 29, 2024). The complaint.

This case started in W.D. Michigan as “Sarah v. Google.” I haven’t tracked it through its permutations to see how its caption evolved into “Unknown Parties v. Google,” though that is an unusual case caption because presumably the lawyers representing the plaintiffs know their clients.

The court summarizes:

The plaintiffs allege that Onision “ran several YouTube channels” that “targeted minor audiences” and allowed Onision to “groom and lure underage girls.” According to the plaintiffs, YouTube is liable because it provided a platform for Onision to reach young girls and because it shared advertising revenue with him.

Stated that way, Section 230’s applicability is obvious. The court says “Such allegations clearly seek to treat YouTube as a ‘publisher’ of Onision’s content.”

To get around this, the plaintiffs alleged that YouTube “partnered” with Onision through its “YouTube Partnership Program” (the court disregards the “partnership” titling). The court says the program is just a revenue-share, not an effort by YouTube to exercise control over Onision’s content.

The plaintiffs also invoked FOSTA. The court says “the plaintiffs must allege that a defendant-website’s own conduct demonstrates that it knowingly benefitted from knowingly participating in child sex trafficking,” and at most the plaintiffs assert a “mere association.” Furthermore,

Apart from the plaintiffs being introduced to Onision through his YouTube videos, none of the subsequent alleged interactions between the plaintiffs and Onision took place on YouTube. And there are no allegations that YouTube was ever made aware of any illegal conduct between the plaintiffs and Onision.

The court distinguishes GG v. Salesforce because the “only allegation suggesting a business relationship between YouTube and Onision is the YPP, which is a standard advertising revenue agreement that YouTube offers to many content creators.” That seems to lead squarely into the Ninth Circuit’s Gonzalez v. Google ruling, which seemingly created a Section 230 exception for revenue-sharing programs like YouTube’s. I’ve repeatedly wondered what’s left of Gonzalez v. Google after the Supreme Court ruling, and I still don’t know.

More SESTA/FOSTA-Related Posts

* Grindr Defeats FOSTA Claim–Doe v. Grindr
Twitter Defeats FOSTA Case Over CSAM–Doe v. Twitter
DC Circuit Upholds FOSTA’s Constitutionality (By Narrowing It)–Woodhull v. U.S.
Section 230 Immunizes Snap, Even if It’s “Inherently Dangerous”–L.W. v. Snap
The Ninth Circuit’s FOSTA Jurisprudence Is Getting Clearer (and More Defense-Favorable)
Defendants Get Important FOSTA Win in 9th Circuit–Doe v. Reddit
More Evidence that FOSTA Benefited No One
Omegle Denied Section 230 Dismissal–AM v. Omegle
Section 230 Helps Craigslist Defeat Sex Trafficking Case–LH v. Marriott
Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–GG v. Salesforce
Constitutional Challenge to FOSTA Fails–Woodhull v. US
Catching Up on a FOSTA Case–ML v. Craigslist
Facebook Loses Jurisdictional Ruling in Texas Sex Trafficking Lawsuit–Facebook v. Doe
Justice Thomas Really, REALLY Wants Section 230 Repealed (Even If He Has to Do It Himself)
Section 230 Immunizes TikTok for User-Posted Videos–Day v. TikTok
So Many Unanswered Empirical Questions About FOSTA
Another Problematic FOSTA Ruling–Doe v. Pornhub
Catching Up on Recent FOSTA Developments (None of Them Good)
Section 230 Preempts Claims Against Omegle–M.H. v. Omegle
To No One’s Surprise, FOSTA Is Confounding Judges–J.B. v. G6
FOSTA Claim Can Proceed Against Twitter–Doe v. Twitter
FOSTA Survives Constitutional Challenge–US v. Martono
2H 2020 Quick Links, Part 4 (FOSTA)
Justice Thomas’ Anti-Section 230 Statement Doesn’t Support Reconsideration–JB v. Craigslist
Sex Trafficking Lawsuit Against Craigslist Moves Forward–ML v. Craigslist
Section 230 Preempts Another FOSTA Claim–Doe v. Kik
Section 230 Protects Craigslist from Sex Trafficking Claims, Despite FOSTA–JB v. Craigslist
Facebook Still Can’t Dismiss Sex Trafficking Victims’ Lawsuit in Texas State Court
Craigslist Denied Section 230 Immunity for Classified Ads from 2008–ML v. Craigslist
2H 2019 and Q1 2020 Quick Links, Part 3 (FOSTA/Backpage)
New Paper Explains How FOSTA Devastated Male Sex Workers
FOSTA Constitutional Challenge Revived–Woodhull Freedom Foundation v. US
New Civil FOSTA Lawsuits Push Expansive Legal Theories Against Unexpected Defendants (Guest Blog Post)
Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–Doe v. Salesforce
Latest Linkwrap on FOSTA’s Aftermath
Section 230 Doesn’t End Lawsuit Claiming Facebook Facilitated Sex Trafficking–Doe v. Facebook
New Essay: The Complicated Story of FOSTA and Section 230
Who Benefited from FOSTA? (Spoiler: Probably No One)
FOSTA’s Political Curse
FOSTA Doesn’t Help Pro Se Litigant’s Defamation Claim Against Facebook
Constitutional Challenge to FOSTA Dismissed for Lack of Standing (Guest Blog Post)
An Update on the Constitutional Court Challenge to FOSTA–Woodhull Freedom v. US (Guest Blog Post)
Indianapolis Police Have Been “Blinded Lately Because They Shut Backpage Down”
Constitutional Challenge Against FOSTA Filed–Woodhull v. US (Guest Blog Post)
Catching Up on FOSTA Since Its Enactment (A Linkwrap)
More Aftermath from the ‘Worst of Both Worlds FOSTA’
‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration
Backpage Loses Another Section 230 Motion (Again Without SESTA/FOSTA)–Florida Abolitionists v. Backpage
District Court Ruling Highlights Congress’ Hastiness To Pass ‘Worst of Both Worlds FOSTA’– Doe 1 v. Backpage
More on the Unconstitutional Retroactivity of ‘Worst of Both Worlds FOSTA’ (Guest Blog Post)
Senate Passes ‘Worst of Both Worlds FOSTA’ (Linkwrap)
Why FOSTA’s Restriction on Prostitution Promotion Violates the First Amendment (Guest Blog Post)
SESTA’s Sponsors Still Don’t Understand Section 230 (As They Are About to Eviscerate It)
Can the ‘Worst of Both Worlds FOSTA’ Be Salvaged? Perhaps…and You Can Help (URGENT CALL TO ACTION)
Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)
What’s New With SESTA/FOSTA (January 17, 2018 edition)
New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
How SESTA Undermines Section 230’s Good Samaritan Provisions
Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)
Another SESTA Linkwrap (Week of October 30)
Recent SESTA Developments (A Linkwrap)
Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
My Senate Testimony on SESTA + SESTA Hearing Linkwrap
Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity