• by Wendy Davis  @wendyndavis, August 26, 2023

Two tech associations are urging a federal appellate court to reconsider a recent ruling that allows a sex-trafficking victim to sue Salesforce for providing software and support to the defunct classifieds site Backpage.com.

The ruling “invites lawsuits against upstream software providers” and threatens “the continued publication of third-party content online,” NetChoice and Chamber of Progress write in a friend-of-the-court brief filed Thursday with the 7th Circuit Court of Appeals.

The organizations are weighing in on a lawsuit brought by a victim, identified only as “G.G.,” and her mother.

They alleged that in 2016, when G.G. was 13, she was trafficked by someone who advertised on Backpage.

The complaint claimed Salesforce violated anti-trafficking laws by providing Backpage with customer-relationship management software and support.

U.S. District Court Judge Andrea Wood in the Northern District of Illinois dismissed the lawsuit last year, ruling that Salesforce was protected by Section 230 of the Communications Decency Act, which immunizes companies that provide interactive services from lawsuits over illegal material posted by users.

Wood wrote that the lawsuit presented a “quintessential claim” covered by Section 230, because the victim and her mother sought to “impose liability on an interactive computer service for third-party content that was published on an online platform.”

“Put simply, plaintiffs seek to hold Salesforce liable for the fact that Backpage used Salesforce software to cultivate sex traffickers as customers and grow the website’s reach among sex traffickers, ultimately resulting in the posting of the advertisement featuring G.G.,” Wood wrote.

G.G. and her mother then appealed to the 7th Circuit Court of Appeals, which reversed Wood and reinstated the lawsuit in a 2-1 decision.

The majority found that Salesforce wasn't entitled to immunity under Section 230 because Salesforce didn't itself host third-party content.

“Salesforce was simply not involved in any publishing,” Circuit Judge David Hamilton wrote in an opinion joined by Judge Doris Pryor.

“Salesforce’s job was, in part, to help Backpage reach more customers, both in the form of sex traffickers and purchasers of commercial sex,” the judges wrote. “In a sense, Salesforce helped Backpage find more sex-trafficking contractors. Plaintiffs’ allegations therefore do not treat Salesforce as a publisher or speaker even if Backpage’s publishing played a critical role in causing G.G.’s ultimate injury at the hands of her trafficker.”

The judges also found that the allegations, if proven true, could support a claim that Salesforce participated in a sex-trafficking venture run by Backpage.

“Based on the repeated and allegedly lucrative contracts between Salesforce and Backpage, we draw the reasonable inference in plaintiffs’ favor that Salesforce participated with Backpage in the venture of Backpage’s sex-trafficking business by helping it grow,” they wrote.

Salesforce is currently seeking a new hearing in front of the entire 7th Circuit, arguing both that the allegations didn't support a sex-trafficking claim, and that Section 230 should have protected the company from lawsuits.

“G.G. was injured because third parties posted content on Backpage that allegedly led to her trafficking,” the company wrote in papers filed earlier this month with the 7th Circuit. “A claim of that kind triggers section 230’s protections.”

NetChoice and Chamber of Progress are backing Salesforce's request. Those groups argue that Section 230 protects publishers of third-party content as well as interactive companies that assist those publishers.

“Failing to apply Section 230’s protections here would open the floodgates to lawsuits against services that provide inputs into online speech,” the groups write.

“Salesforce provides software to hundreds of thousands of clients, including content-based platforms like Spotify, NBCUniversal, and the Financial Times.... Exposing Salesforce to liability in lawsuits like this one would require the company to vet every entity they contract with, and may lead it to stop doing business with websites whose content could lead to liability -- even where the websites would be protected by Section 230 immunity.”

Before Backpage went out of business, the company had been sued numerous times for allegedly facilitating sex trafficking. Most of the time -- but not always -- Backpage defeated the lawsuits on the grounds that it was protected from liability by Section 230. In 2018, the federal government shut down Backpage and CEO Carl Ferrer pleaded guilty to money laundering and conspiracy to facilitate prostitution.