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.