Instagram Defeats Lawsuit Claiming It Was a “Breeding Ground” for Sex Traffickers–Doe v. Backpage

This opinion came out in March but just showed up in my alerts. Doe claims she was sex-trafficked on Instagram. Section 230 preempts her lawsuit against Facebook: “Ninth Circuit precedent interpreting Section 230 of the Communications Decency Act, 47 U.S.C. § 230, forecloses Doe’s claim as currently pled, because she seeks to hold Meta liable for content created by her trafficker.”

To get around Section 230, Doe made two arguments: (1) Instagram is a “breeding ground” for sex trafficking, and (2) Instagram’s algorithms matched criminal with victim. The claims didn’t try to fit into the Section 230 FOSTA exception, though this case otherwise looks like a FOSTA case.

The court responds: “Doe’s breeding ground theory essentially seeks to hold Meta liable for failing to remove traffickers’ grooming messages and posts advertising their victims for sex.” Cite to Lemmon v. Snap, Barnes, Roommates, Dyroff.

The but-the-algorithms theory fares no better:

Doe advances a variant of what is essentially the same argument [as Dyroff]. She argues that Section 230 does not apply because her claims are based on Meta connecting her to a certain person, not directing her to certain content. But Doe “cannot plead around Section 230 immunity by framing” her claim as one involving Meta’s connection algorithms rather than the user-generated content that those algorithms facilitate…Doe’s entire claim is based on the content of the subsequent interaction: that, as a result of the connection, Doe’s trafficker was able to message her and post on her Instagram page, which in turn allowed him to groom Doe and eventually force her into sex trafficking…Meta did not generate the messages and posts by Doe’s trafficker, and cannot be held liable for his sex trafficking content.

(I’m not sure what’s left of the Fifth Circuit’s Doe v. MySpace ruling, but it dealt with this criminal-victim matching argument. In other words, this Doe’s arguments went straight into 15+ years of adverse precedent. This judge focused solely on Ninth Circuit precedent, which makes sense because this court is in the Ninth Circuit’s territory and that will help with any appeal).

The court dismisses the case but gives the plaintiff the chance to amend the complaint to plead failure-to-warn and negligent design–because those arguments show up in virtually every 230 case now. Wielding those arguments should help Doe get around Section 230, though the case should then fail for other reasons.

Most FOSTA opinions are lengthy, but this one was short because the law was quite clear. The plaintiff’s lawyers repackaged arguments that have failed many times before. Unsurprisingly they failed again; and they should fail on appeal too (but who knows).

Finally: in passing, the court says “Her trafficker was convicted in a criminal trial and sentenced to 40 years in prison.” No degree of carceral punishment will provide adequate justice for the victim, but the criminal did not escape the justice system we have.

Case Citation: Doe (K.B.) v., LLC, 2024 WL 2853969 (N.D. Cal. March 20, 2024)

More SESTA/FOSTA-Related Posts

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