This is an important early judicial interpretation by FOSTA. The court reached several key conclusions, including the fact that Section 230 (c) (1) continues to anticipate state civil claims and Craigslist has not been “involved” in any business with any commercial sex advertiser. If this ruling remains in effect, it will pose a serious obstacle to the numerous lawsuits aimed at bringing Craigslist to justice for its pre-2010 activities. (This statement does not discuss the statute of limitations or the retrospective application of FOSTA.) However, this case will inevitably be challenged by any losing party to the Ninth Circle, so the decision will be the more authoritative conclusion.
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This is one of several pending civil lawsuits filed by victims of sex trafficking against motels and online services. This plaintiff claims that it was offered for sale on Craigslist from 2007 to 2010:
The plaintiff also alleges that "Defendant Craigslist knew that its adult services division was known to commercial sex customers in the United States as a place where victims can be easily traced as goods (sic), unpunished, anonymous, child sexual abuse . " Craigslist should have known that the plaintiff's positions involved child trafficking because of the "scantily clad and partially nude photos of the applicant's minor". Instead, "Craigslist provided coverage for underage advertising by asking sex traffickers to click the" Posting Rules "page that reads," I am 18 years of age or older and I am not considered a minor in my state, "though "Craigslist has not done anything to verify the real age of the person being advertised" and has not "taken any reasonable initiative to verify the real identity of the posters".
Section 230. Craigslist qualifies for immunity under Section 230 (c) (1) for the plaintiff's state legal claims:
- Websites are ICS
- The plaintiff alleged that Craigslist "advertised" the victim. This is a publisher's claim.
- The plaintiff admitted that it posted the ads and confirmed that Craigslist did not create them. "The only role Plaintiff assigns to Craigslist is that of editor of third-party posts." The court adds that "Craigslist's request that a third party post confirms that he or she is an adult is not based on incentives or material contributions to the contribution. " (Quote on Dart v. Craigslist).
The court then discussed FOSTA to exclude some sex trafficking claims from Section 230 (c) (1). The court says the "plain language of (FOSTA) suggests that state civil actions are not cut out of Section 230 immunity, even in sex trafficking cases." The plaintiff cited a possibly opposite language in legislative history, but the court says the legal language is clear; and this legislative report focused on state criminal law enforcement rather than civil law enforcement.
The court then addresses one of FOSTA's major editorial quirks. FOSTA added 230 (e) (5) to exclude three categories of claims from 230 (c) (1): (1) federal civil claims under 1595, (2) state criminal claims coextensive with 1595, and (3) State Claims Criminal claims co-extensive with 2421A. Section 230 (e) (5) does not exclude federal civil actions under 2421A, although this would be a natural parallel to the exclusion of civil actions of 1595. Why this imbalance? The answer is that FOSTA grafted two separate bills into a superset of "worst of all worlds" and Congress did not fix that anomaly in the combined bill. In fact, Congress probably didn't even understand that they caused the anomaly because the complexity of the Worst of All Worlds FOSTA overwhelmed everyone, including its authors and sponsors.
Plaintiff argues that this imbalance of 1595 / 2421A is irrational, so Congress must not have intended that the explicitly enumerated exclusions in Section 230 (e) (5) match the comprehensive list of exclusions in Section 230 (c) (1 ) are. The court disagrees. Because of the importance of this topic, I will quote at length:
The plaintiff further asserts that § 230 (e) (5) cannot be understood as an exhaustive list, since such a reading "would mean that the new civil law plea of the federal government created by FOSTA – § 2421A – could never be used, because it would do so is not listed in subsection (e) (5). "Section 2421A is a federal law that makes the" (p) promotion or facilitation of prostitution and the ruthless disregard of the sex trade "a criminal offense. Federal criminal law has always been outside the scope of Section 230. Section 2421A (c) also provides a civil plea for “(a) any person injured in breach of Section 2421A (b)” and allows for “reimbursement of damages and reasonable legal fees ”.
Although the civil cause of action is not explicitly mentioned in the CDA amendment, that provision was made at the same time as Section 230 (e) (5). The Court agrees that Congress may not have intended to rule out the new civil lawsuit created under FOSTA legislation, but does not follow that the drop-off list of Section 230 (e) (5) should also be understood as state civil claims. Prior to the change, there were civil grounds for state sex trafficking that were specifically considered by Congress (as mentioned in the legislative history discussions cited above, see HR Rep. No. 115-572, items 1, 1-3), but by Congress Ultimately, they were not included in the amendment. On the other hand, Section 2421A (c) was passed concurrently and the Tribunal is not aware of any discussions or deliberations by Congress on the new federal civil action under the CDA. The decision of Congress not to list Section 2421A (c) (for whatever reason) does not, therefore, undermine the conclusion that Section 230 (e) (5) fully sets out the scope of the intended spin-off of immunity, at least in relation to the determination civil claims.
The court also denies that FOSTA's statements about the "meaning of Congress" change the analysis.
As a final argument, the plaintiff asserts that the exemption from state claims under Section 230 (e) (3) is not applicable due to its specific wording. The court disagrees.
So the court sums up:
Therefore, given the clarity of the plain language of the amendment to the CDA and the ambiguity of the legislative history cited by the plaintiff, the Court finds that the CDA applies to civil sex trafficking claims under state law
Another court (ML v Craigslist) came to the same conclusion, but that court's analysis is more thorough and detailed
Currently, the results are that (1) Section 230 (c) (1) continues to apply to state civil claims related to sex trafficking, and (2) Section 230 (c) (1) applies to state civil claims under 2421A. All of this makes sense – if you understand FOSTA's story as a poorly drafted Frankenstein bill.
Section 1595 (TVPRA). This state civil claim is specifically not covered by 230 (c) (1) per 230 (e) (5) (A). The court determines the elements of the plaintiff:
In order to establish liability under Section 1595, the plaintiff must prove that (1) Craigslist knowingly benefited financially or received something valuable (2) by participating in the sex trading company (3) that Craigslist knew or should have known it constitutes a violation of the TVPRA.
Craigslist argued that 1591 defined "participating in a company". The court disagrees:
Other courts defining participation under Section 1595 have “in the absence of a direct link” “required evidence of an ongoing business relationship between the trafficker and the (defendant) so that it appears that the trafficker and the (defendant ) a connection established a pattern of behavior or an implied agreement. "
Still, the court says the plaintiff failed to properly allege Craigslist's contribution to the company. The plaintiff claimed that Craigslist had "but for" the cause, but that was not enough:
Plaintiff's allegation inevitably suggests that Craigslist is entering into tacit agreements with all human traffickers (or even all posters) using its website, and there is no factual basis to make that claim plausible. Another conclusion would imply that "all web (-) based communication platforms are legally obliged to check every single message generated by the user before it is transmitted to any individual or displayed to the public" so that these platforms are not considered to be involved in the Companies. The Court agrees with Craigslist that there is no indication that Congress intends to create such a duty, or that it would be reasonable given the volume of input from third parties on a daily basis
Craigslist also denied the scientists' claims about human trafficking. The court bypasses the legal standard, but uses a crazy hypothesis to illustrate an external limit: “For example, the court can envision a situation in which a website owner openly and knowingly enters into a deal with sex traffickers for the company to support publication of advertisements with minors in exchange for a reduction in the proceeds. In this situation, where the website is clearly involved in the human trafficking company, it seems completely inconsistent with the purpose of Congress to pass the law to provide the website with a defense against a claim made by a victim of the company Just because they didn't know are driving the names or identities of individuals who would predictably become victims in this way. "
The court concludes:
The Court recognizes that there is some tension between the requirements of TVPRA and the general purpose of FOSTA. With FOSTA's amendment to the CDA, it should become easier to hold websites accountable. However, TVPRA's requirement that the defendant be part of a business makes it difficult to put action against sites like Craigslist because those sites get billions of posts and interaction with a particular business may be difficult to prove. What is important, however, is that Congress did not change Section 1595 when it passed FOSTA and that the Court of Justice must interpret the TVPRA elements at first glance. Since Craigslist cannot be considered to be involved in all of the endeavors that arise from every post on its website, Plaintiff must assert facts that support the conclusion that Craigslist has entered into an implied agreement with the sex traffickers whom Plaintiff is the victim of did, and she didn't.
The plaintiff has the opportunity to answer this assertion again.
In April, M.L. v. Craigslist, a court denied Craigslist's motion to be fired by a sex trafficking victim in a similar case. I can think of at least three reasons why the cases came to different conclusions:
- Meeting place. ML is in W D. Washington while this case is in N. D. California. However, both courts roll to the ninth circuit, so they should apply the same law.
- Different facts. The ML plaintiff apparently made other factual allegations. The actual allegations made by both plaintiffs are likely to be insufficient, but JB's actual allegations may have been more inadequate.
- Attitudes of various judges to 12 (b) (6) motions. The judge in the ML case felt compelled to accept the allegations in a motion to dismiss as true without properly examining them. Because of the weak factual allegations in JB's complaint, the court can find Section 230, despite accepting the allegations as true. However, I suspect the ML judge would have dismissed Section 230 had he heard the JB case to ensure every plaintiff had their day.
Despite ruling in favor of Craigslist, the JB judge made some interesting statements for the plaintiffs. The judge acknowledged that "FOSTA's amendment to the CDA was aimed at making websites more accountable" and said that "Congress may not have intended to rule out the new (2421A) civil lawsuit created under the FOSTA legislation . " These considerations will certainly be cited by future plaintiffs. At the same time, that judge also accepted the political argument that Craigslist cannot be held liable for every posting – an important finding that would require plaintiffs to produce better evidence than they may have.
Seeing these lawsuits against Craigslist makes it clear again how strange and probably unexpected the consequences of FOSTA are. We are currently seeing many civil cases against sex traffickers in court, including significant litigation against hotels / motels. Perhaps these cases will bring about reforms in this industry (although they were already working on the self-regulatory effort when FOSTA was passed). In contrast, the lawsuit against Craigslist doesn't change anything, as the company has been out of the industry for a decade and its closest competitor, Backpage, has also permanently disappeared. Meanwhile, FOSTA urged law enforcement officers to divert their efforts away from rescuing victims of sex trafficking and arresting other commercial sex workers. I don't really see who will benefit from the Craigslist lawsuits. At most, the beneficiaries will be a few victims who succeed in court and their lawyers. Perhaps Congress still sees cash prizes for a small number of people as a FOSTA win. For me, such advantages are far outweighed by the structural disadvantages of FOSTA.
Case citation: J. B. v G6 Hospitality LLC, 2020 WL 4901196 (N. D. Cal. August 20, 2020)