Sex Trafficking

Judge Poised to Reject Suit by 90 'Jane Does' Who Say Salesforce Is Responsible for Sex Trafficking

The cases hinges on two laws—FOSTA and Section 230—that have been hotly contested in recent years.

|

A San Francisco Superior Court judge has tentatively sided with tech company Salesforce in a civil lawsuit brought by 90 women who claim they were sexually exploited. The suit is the first of its kind since last year's passage of a federal law called FOSTA, which widened punishments for web companies that promote or facilitate prostitution.

The case highlights both the limits of FOSTA and the importance of another federal law—known as Section 230—that is currently under siege from both left and right.

As a large business-to-business software company, Salesforce counted Backpage among its clients. Plaintiffs in the lawsuit against Salesforce allege that Backpage—a classified-advertising platform popular with sex workers—enabled them to be trafficked for sex.

But Backpage was seized by the U.S. government last year, making it a moot point for purposes of seeking civil court damages. And, hence, lawyers got to work targeting Salesforce.

They should have known better. With respect for the plight of victim-plaintiffs in this suit, their lawyers have led them astray, big time, while marking a new low in attempts to assign legal liability to internet companies for their users' actions and words.

See, this lawsuit—as with many similar cases before it—hinges on Section 230 of federal communication law, which specifically shields internet companies from being treated as legally one with every user. And under a large body of legal precedent, Salesforce would be unequivocally shielded by Section 230 in this case.

Section 230 does not apply where federal criminal prosecutions are concerned. And it doesn't apply when websites and tech companies are directly implicated in crimes themselves. But this isn't a criminal prosecution, and no one is claiming that Salesforce directly participated in illegal activity, conspired with Backpage users who committed sex trafficking, or had direct knowledge of any specific crimes that may have occurred. Salesforce simply provided software to Backpage. And other courts have repeatedly said that Section 230 shielded Backpage from legal liability in similar circumstances.

Yet FOSTA, signed into law last April, poked a hole in Section 230. It created an exception to its protection for digital actors where allegations of forced or underage prostitution (i.e. sex trafficking) are concerned.

FOSTA was "enacted to ensure that courts would no longer rule that claims like Jane Does' were barred by Section 230," argue the plaintiffs' lawyers in the Salesforce suit.

They're half right. The trouble is that these Jane Does' claims are based on alleged violations by Salesforce of California state law. And FOSTA does not actually apply to private civil lawsuits based on alleged violations of state law.

Under FOSTA, Congress carved out a Section-230 exception for three kinds of actions: 1) state criminal cases, 2) civil enforcement actions brought by state attorneys general, and 3) private civil lawsuits alleging a federal cause of action. None of these three exceptions applies in the suit against Salesforce.

"Even apart from Section 230, Plaintiffs have not pled any viable claim against Salesforce," the company's lawyers argued to the court—and they are probably right. However, due to Section 230, this point is likely already moot.

Section 230 bars the claims in this case, Judge Ethan P. Schulman said in his tentative ruling.

None of this is too terribly heartening; after all, the damage was done by FOSTA's very passage, which seems to have frightened many online actors into more censorship and driven sex-related industries further underground. But at least this preliminary ruling shows there may be some limits to the ludicrous actions that will be permitted under FOSTA's name.

In any event, the plaintiffs may still contest the tentative ruling, and their lawyers told Bloomberg that they plan to do so. In that case, Judge Schulman will be forced to go ahead with oral arguments. But even so, a ruling in the plaintiffs' favor seems unlikely based on the plain facts of the case.

Advertisement

NEXT: Witness Says Vaping Helped Her Quit Smoking. Rashida Tlaib Asks 'Are You a Conspiracy Theorist?'

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Wait a minute – Salesforce allowed them to be trafficked – they didn’t allow themselves to be trafficked? You know, by posting the ads on backpage?

  2. Why not legalize prostitution?
    That would eliminate a lot of headaches.
    Oh, wait.
    That makes sense.
    I keep forgetting common sense is now a liability in America.
    My bad.

    1. Why not legalize prostitution?

      Who would prostitutes sue then?

      1. Customers who don’t pay, or who mistreat them?

        1. Its legal in certain parts of the world (Including close by Vegas) and mistreatment can still result in charges.

    2. Common sense? In MY America?!

      We don’t like “your kind” around here, boy.

  3. They’re half right. The trouble is that these Jane Does’ claims are based on alleged violations by Salesforce of California state law.

    Sooo… we DON’T have to worry about Angela Merkel whispering sweet nothings into Zuckerberg’s ear?

  4. I’m guessing the judge just got added to the suit? Salesforce enabled Backpage and now this judge is enabling Salesforce. Too bad the lawyers write the rules and we’ll never see a loser pays rule to disincentive this sort of abuse of the legal system.

    1. You want to stop this nonsense? Enact common-sense lawyer pay, and outlaw contingency fees.

      1. contingency fees… Are you serious? That would stop people from having their day in court without having their own funds to pay said lawyer after they were wronged in any way. Say for example a major company wrongly published that you were a pedo, and of course that automatically harms you, but you can do nothing about it without a lawsuit. And without money you can’t sue. That would harm you even more, as the longer you wait, you are now leaving the record stand.

        1. Indeed, contingency fees shouldn’t be banned. They need to be drastically curtailed though. Lawyers in my state for example have limited any sort of commission pay, so that if it is deemed “too high” or “excessive” you can have the entire commission revoked in court. In Real Estate, this limits it to ~10% at max (which is fine and fair) but they’ve managed to give themselves a complete exemption, saying that lawyers can charge whatever they please.

          Limit contingency fees to 10% of the award in a commission / % of awards basis, and you’ll see a lot of this die down, but still be able to have people try to take on the big companies if necessary.

    2. “The case highlights both the limits of FOSTA and the importance of another federal law—known as Section 230—”

      Wouldn’t it be funny if the Jane Does all got together, opened Grindr accounts, and within the next month over 3 thousand creepy men show up at the Judge’s house at all hours of the night looking for sex? Judge can’t do shit…

  5. “Under FOSTA, Congress carved out a Section-230 exception for three kinds of actions: 1) state criminal cases, 2) civil enforcement actions brought by state attorneys general, and 3) private civil lawsuits alleging a federal cause of action. None of these three exceptions applies in the suit against Salesforce.”

    how doesn’t the third exception apply ? a private civil suit…which this is, and sex trafficking i’m pretty sure is covered under federal law….though they merely provided software to backpage is another issue

  6. I see no reason why this should hinge on section 230. Just because their CRM software is hosted? That’s nuts.

    You might as well sue ADP for doing their payroll. Or Con-Ed or whoever for providing their electricity.

    Did they bother to find out who delivers their mail? Probably both UPS and Fed-Ex are implicated.

    Putting this in the section 230 bucket is nuts. The only nexus with the internet is that it is SAAS. By that measure, every SAAS suddenly becomes 230 exempt. That is probably also an unintended consequence.

    Bad laws and bad cases brought under bad laws definitely make for bad case law.

    1. Salesforce doesn’t provide software, as the article states: it hosts the data of its customers (and their customers).

      In the sense that accessing a server in a location is essentially activity in that location, it makes sense that the jurisdiction is defined by the host’s location. Salesforce owns the server that offered the illegal services, while PG&E just sells electricity.

      Every other law in this episode is totally stupid.

      1. Its not clear that Backpage was even illegal.

  7. Can they sue the outfit’s lawyer? They were a client of him/her also.

  8. Judges need to start practicing their “laughing them out of court” laugh and using those gavels.

  9. In this particular subject, at least Congress is legislating in one of its core competencies – fighting slavery (let’s use the constitutional term). Forcing people into sex work is just as criminal and disgusting as forcing people into agricultural labor.

    But if ENB’s coverage is correct – and she’s the expert I’ve been following – then the feds are using the antislavery rationale to get into voluntary adult prostitution, which is a state responsibility.

  10. Unfortunately women have a tendency to fall into sex hysterias such as the “recovered memories” and “daycare molestation” episodes, among others, that did so much harm (not least because lawyers milk them for as much profit as they can).
    Maybe this will help curb that nonsense.

Please to post comments

Comments are closed.