The petition seeks to re-examine a three-judge panel’s split decision finding Salesforce could be held liable in a lawsuit brought by a sex-trafficking victim because the San Francisco tech company sold software services to Backpage.com.
The August ruling reversed a Chicago trial court judge who dismissed the suit on the grounds that Salesforce is protected by Section 230 of the Communications Decency Act, the 1996 federal law that provides legal immunity to internet companies for user-created content.
The appeals court decision was seen as a victory for plaintiffs suing companies over their alleged role in online sex trafficking, but it has drawn scrutiny from the tech industry and others who argue that such a broad interpretation will cast too wide of a liability net.
The court’s final interpretation of Section 230 and federal sex-trafficking law “will have tremendous, tremendous implications for both victims of online harm and also for online pornography and those who do business with those platforms,” said Julie Dahlstrom, a law professor at Boston University who studies human trafficking.
Attorneys for the plaintiff—referred to as G.G.—pushed back against the petition in a brief filed last week, arguing that the US Court of Appeals for the Seventh Circuit panel got the decision right: The ruling doesn’t depart from other courts on federal sex-trafficking law or internet immunity protections.
“The Court should reject Salesforce’s renewed attempts to invoke ‘slippery slope’ hypotheticals to distract the Court from the detailed allegations recounting the depth of Salesforce’s involvement in Backpage’s trafficking operation,” the brief said.
The Seventh Circuit majority opinion written by Judge David F. Hamilton said the company, which develops customer relationship management software, can be sued under the federal Trafficking Victims Protection Reauthorization Act, which allows victims to bring civil suits against those who “knowingly benefited” from a trafficking venture.
Because the lawsuit only targets Salesforce’s business ties to Backpage and not the publication of user-made content, the company can’t invoke Section 230, the opinion said.
In a dissenting opinion, Judge Thomas Kirsch said the majority’s reading of the trafficking statute “would extend civil liability to nearly every company and individual who did regular and personalized business with Backpage after it faced public allegations of sex trafficking.”
The tech and internet industry trade groups NetChoice and Chamber of Progress filed a joint friend-of-the-court brief supporting the rehearing request. They argued the court incorrectly denied Section 230 immunity to Salesforce. The International Franchise Association, which represents hotel franchises that have faced trafficking suits, also filed an amicus brief supporting a rehearing.
Dahlstrom said she wasn’t surprised that the issue has drawn so much legal attention “given the nature of civil litigation in this space and the fact that we’re seeing the expansion of the application of federal trafficking statutes.”
Trafficking on Backpage
Deanna Rose, the mother of G.G., filed the lawsuit against Salesforce in 2020. The complaint alleged the company sold customized software to Backpage beginning in 2013 that allowed the site to grow into the world’s largest sex-trafficking operation. G.G. ran away from home in 2016 when she was 13 and “fell into the hands of a sex trafficker” who advertised her for sex on the Backpage, according to court filings.
The site had faced widespread public accusations that it was a leading internet marketplace for advertising sex trafficking since 2008. The US Justice Department seized Backpage in 2018 after congressional and federal law enforcement investigations, and its founders were charged with facilitating prostitution and money laundering.
The case prompted Congress to amend Section 230, enacting the Fight Online Sex Trafficking Act in 2018 to create an exception to immunity for civil lawsuits that allege violations of federal criminal sex-trafficking law.
FOSTA has so far provided limited success for plaintiffs attempting to break through the Section 230 legal shield. The Ninth Circuit ruled last year that Reddit Inc. was still protected from a civil trafficking suit because the plaintiffs failed to show that Reddit’s conduct had amounted to a violation of the criminal trafficking law.
The trial judge for the Northern District of Illinois in G.G.'s case came to a similar conclusion last year, but the Seventh Circuit took a different approach. The panel’s majority ruled that Section 230 didn’t apply to Salesforce because, unlike Reddit, the dispute doesn’t involve claims that treat the company as a publisher of third-party content.
“Plaintiffs seek to hold Salesforce accountable for supporting Backpage, for expanding Backpage’s business, for providing Backpage with technology, for designing custom software for Backpage, for facilitating the trafficking of G.G.,” the majority opinion by Hamilton said.
And because Section 230 didn’t apply, G.G. only needed to allege that Salesforce violated the civil trafficking law, which has a lower “knowledge standard” than the criminal statute.
Broad Implications
NetChoice and the Chamber of Progress argued in their amicus brief that the Seventh Circuit failed to recognize Section 230 explicitly applies to “access software providers” like Salesforce that aid with the publication of speech.
The ruling, if left standing, would have a widespread chilling effect by allowing frivolous lawsuits targeting Salesforce over its support of platforms like
“If Section 230 were limited to protecting only end publishers of allegedly dangerous third-party content, then a plaintiff could simply go upstream one level and sue some service provider of that publisher and achieve the same chilling effect,” said Adam Sieff, an attorney at Davis Wright Tremaine LLP who helped write the industry groups’ brief.
The Seventh Circuit’s finding that Section 230’s protection doesn’t apply to services like payment processors and customer relationship tools splits with rulings in the Ninth and Second circuits, Sieff argued. Both of those appeals courts have ruled that the domain name and web hosting company
But for plaintiffs, the wide net is key.
The Seventh Circuit correctly held that the liability shield omits “those companies who are not publishers or speakers of third party content,” said Lauren Tabaksblat, an attorney at Brown Rudnick LLP who is representing child sexual abuse victims suing Aylo—recently rebranded from MindGeek—the parent company of Pornhub.
“The trafficking statute extends liability beyond those directly involved in human trafficking and imposes liability on financial institutions and partners, such as banks and credit card companies, who knowingly benefited from a trafficking venture,” Tabaksblat said.
The judge in the Pornhub case ruled last year that
“Creative litigators are deploying the trafficking framework more broadly and judges are taking those arguments seriously, which is what we’re seeing in the Salesforce case,” said Dahlstrom, the law professor. “FOSTA opened the door to litigation against tech companies, and now the question is, how broadly will it be open?”
Bracewell LLP, Meyers & Flowers LLC, and Fibich Leebron Copeland Briggs represents G.G. Gibson Dunn & Crutcher LLP and Riley Safer Holmes & Cancila LLP represent Salesforce.
The case is G.G. v. Salesforce, 7th Cir., No. 22-02621, response to rehearing petition 9/13/23.
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