76 F.4th 544
7th Cir.2023Background
- Plaintiff G.G., who ran away at 13, was repeatedly prostituted after being advertised on Backpage.com; Backpage later admitted functioning as a site for sale of sex and pled in related prosecutions.
- By 2013 Backpage was widely publicly identified as a major hub for sex‑trafficking, including trafficking of minors.
- Salesforce contracted with Backpage from 2013–2018, providing customized software, marketing/operational support, and recurring consultative services that plaintiffs allege materially scaled Backpage’s business.
- Plaintiffs sued Salesforce under 18 U.S.C. § 1595 (participant liability for sex‑trafficking victims) after Backpage was shut down; the district court dismissed under Rule 12(b)(6), invoking § 230 and failure to state a § 1595 claim.
- The Seventh Circuit reversed: it held the complaint plausibly alleged a § 1595 participant claim (venture, constructive knowledge, participation via continuous business relationship, and knowing benefit) and that § 230 did not bar the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is a “venture” under § 1595 limited to a venture that is primarily a sex‑trafficking venture? | A venture may be a commercial enterprise (e.g., Backpage’s business) that engaged in acts violating § 1591. | “Venture” must be a particular sex‑trafficking enterprise. | Venture need not be primarily a sex‑trafficking venture; a commercial venture that engaged in § 1591 acts suffices. |
| Must the defendant have known (or should have known) of the specific victim (plaintiff) to be liable under § 1595? | Constructive knowledge that the venture generally violated § 1591 is enough; defendant need not know the specific victim. | Defendant must have known or been constructively aware of the plaintiff’s specific trafficking. | § 1595 does not require knowledge of the specific victim; constructive knowledge of the venture’s § 1591 violations suffices. |
| What qualifies as “participation in a venture”? (Direct involvement vs. other assistance) | Participation can be assisting/supporting/facilitating via a continuous, tailored business relationship (no need for direct hands‑on trafficking). | Participation requires direct participation in a common undertaking (more immediate role in trafficking). | Participation may be satisfied by repeated, tailored assistance in a continuous business relationship that facilitates the venture’s success. |
| What does “knowingly benefits” require? (Must there be a quid pro quo/causal link?) | Awareness that one is receiving value from participation suffices; no requirement that benefit was provided in exchange for facilitation. | Plaintiff must show a causal quid pro quo and that defendant knew the benefit was because of its facilitation. | No quid pro quo or proof of why the benefit was conferred is required; knowing receipt of benefits from participation suffices. |
| Does § 230(c)(1) bar the § 1595 claim against Salesforce? | § 230 doesn’t apply because the suit targets Salesforce’s own independent conduct (assistance/facilitation and business support), not its role as publisher/speaker of third‑party content. | § 230 immunizes online service providers from claims based on third‑party content; Salesforce was an interactive computer service. | § 230 defense fails: plaintiffs do not treat Salesforce as publisher/speaker of third‑party content and the alleged wrong is Salesforce’s own participatory conduct. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard: plausible claim survives Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (limits on conclusory allegations at pleading stage)
- Ricchio v. McLean, 853 F.3d 553 (1st Cir. 2017) (participant liability under § 1595 may proceed where trafficker committed § 1591 violation)
- Doe #1 v. Red Roof Inns, Inc., 21 F.4th 714 (11th Cir. 2021) (discusses scope of “participation” and venture framing under § 1595)
- Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016) (Section 230 decision that prompted legislative response)
- Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003) (explains requirement of culpable assistance for secondary liability)
- Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (discusses online intermediaries and limitations of liability)
- Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023) (Supreme Court on aiding‑and‑abetting/secondary liability in terrorism context; noted for contrast on mens rea/degree of assistance)
- City of Chicago v. StubHub!, Inc., 624 F.3d 363 (7th Cir. 2010) (Section 230 limits who may be treated as publisher/speaker)
- Federal Trade Comm’n v. LeadClick Media, LLC, 838 F.3d 158 (2d Cir. 2016) (Section 230 does not shield a defendant from liability for its own unlawful acts beyond publishing third‑party content)