Case Information
*1 Before H AMILTON , K IRSCH , and P RYOR , Circuit Judges . H AMILTON , Circuit Judge
. In the Trafficking Victims Protec- tion Reauthorization Act of 2003, Congress gave victims of sex trafficking the power to bring civil actions to recover damages from those who trafficked them. 18 U.S.C. § 1595 (2003) . In 2008, Congress broadened that civil remedy to allow what we will call participant liability. The amendment allows victims to recover damages not only from a trafficker who committed a federal crime but also from a person who “knowingly *2 2
benefits … from participation in a venture which that person knew or should have known has engaged in an act” of sex trafficking. 18 U.S.C. § 1595(a) (2008).
Plaintiffs G.G. and her mother Deanna Rose brought this suit under Section 1595 alleging participant liability against defendant Salesforce.com, Inc. G.G. ran away from home at the age of thirteen. She fell into the hands of a sex trafficker who used the now defunct Backpage.com to advertise G.G. Plaintiffs’ theory here is that (a) Backpage.com committed criminal sex - trafficking violations with respect to G.G., among many other victims; (b) defendant Salesforce at least should have known that Backpage.com was engaged in sex trafficking of minors like G.G.; and (c) Salesforce had such a close business relationship with Backpage — providing advice and custom- tailored software for years to help Backpage grow its business — that Salesforce, in the language of Section 1595, knowingly benefited from its participation in what it knew or should have known was Backpage’s sex trafficking venture.
The district court dismissed the case on the pleadings, but we conclude that plaintiffs’ complaint states a viable claim under Section 1595. More specifically, we reject defendant’s arguments: (1) that a “venture” must be primarily a sex-traf- ficking ventur e; (2) that a participant must have had construc- tive knowledge of the specific victim of sex trafficking, the civil plaintiff; (3) that “participation in a venture” requires direct participation in a “common undertaking or enterprise involv- ing risk and potential profit”; and (4) that to knowingly bene- fit requires that the sex trafficker provide the participant with a benefit because of the participant’s facilitation of a sex -traf- ficking venture and that the participant must have known that this was the reason for the benefit. All of these defense theo- ries seek to impose restrictions on the civil remedy that are not consistent with the statute as we understand its language. We also find that Salesforce is not entitled to dismissal under Section 230 of the Com munications Decency Act, 47 U.S.C. § 230. We reverse the judgment of the district court and re- mand for further proceedings.
I. Factual Background & Procedural History
Defendant Salesforce.com moved to dismiss this case on
the pleadings, so we focus on the facts alleged in plaintiffs’
third amended, and operative, complaint. This opinion says
harsh things about Salesforce contributing to sex trafficking,
including trafficking of minors. Because of Salesforce’s tacti-
cal choice to move to dismiss, we treat the allegations as true,
though we do not vouch for their objective truth at this point
in the case. See, e.g.,
Goldberg v. United States
,
In 2016, when she was just thirteen years old, plaintiff G.G. ran away from home. She was picked up by a sex trafficker who advertised her on Backpage.com, an online marketplace, and repeatedly sold her into prostitution. G.G.’s mother searched for her daughter. Eventually, in the summer of 2016, her mother found photos of G.G.— in Backpage’s online ads for escorts. Backpage referred her mother to the National Cen- ter for Missing and Exploited Children but did not take down the advertisement.
The trafficking and advertising of G.G. on Backpage was not an isolated or even an unusual incide nt. When Backpage was created in 2004, it initially served as a marketplace for a variety of goods and services. By 2008, however, plaintiffs *4 4
allege, Backpage “had been publicly identified by law en- forcement, United States Attorneys General, and every stat e Governor as the biggest and most notorious sex trafficking and pimping website in the United States.”
Backpage’s sextrafficking was not limited to adults. Dur- ing the three years prior to G.G.’s trafficking, Backpage gen- erated more than 99% of its revenue from “adult advertise- ments,” including those offering minors for sex. In 2010, the National Association of Attorneys General publicly described Backpage as a “hub” of human trafficking, “especially the trafficking of minors.” In October 2016, just a few months af- ter her mother found the advertisement for G.G. on Backpage, California authorities arrested and charged the chief execu- tive officer of Backpage, Carl Ferrer, for pimping minors. In April 2018, Ferrer and Backpage entered into plea agreements with the United States Department of Justice in which they admitted that Backpage had operated as a site for the sale of sex since 2004. A few days later, in response to a felony charge and on the advice of counsel, Backpage confessed in a Texas court that it “knowingly receive[d] a benefit from participat- ing in a venture that involved the trafficking … of a child younger than 18 years of age, and … [had] caused [the child] to engage in or become the victim of conduct prohibited by” Texas Penal Code Section 43.05 (“Compelling Prostitution”). The United States Department of Justice seized Backpage and shut it down.
According to plaintiffs, Salesforce “entered into the first of several lucrative contracts with Backpage” back in 2013, years after the nature of Backpage’s business was widely known, and about three years before G.G. was trafficked. The con- tracts with Salesforce were designed to “facilitate and sup- port” Backpage’s “exponential growth” and to give Backpage “the ability to keep pace with increasing c ustomer demand and scale its platform into an international sex trafficking hub.”
Salesforce did not merely sell Backpage an off -the-shelf software package. It instead sold Backpage software designed specifically for Backpage and provided affirmative, “pe rson- alized support.” With those products and support, Salesforce helped Backpage operate its business, manage relationships with existing customers, market itself to new customers, and improve profitability. “Salesforce sold Backpage targeted so- lutions add ressed to the needs of Backpage’s business” and provided “active, ongoing support” that was “tailored” to Backpage’s needs.
Toward that end, at least five times between November 2013 and April 2017, Salesforce consulted with Backpage, in- cluding its CEO, to learn about the business and “to assess its operational needs.” With Salesforce’s help in the form of new software, marketing technology, and personalized opera- tional support, Backpage was able to “collect detailed, in - depth customer data and use the data to streamline commu- nications and overall business practices.” When Backpage faced imminent seizure by the United States government and wanted to “establish and maintain a duplicate copy of the Backpage operations system and platform” so that it could “move and operate its business overseas,” Salesforce *6 6
“facilitated this system reorganization and provided the tech- nical infrastructure” to do so.
In short, plaintiffs allege, the business relationship be- tween Backpage and Salesforce was successful. It enable d Backpage “to scale its operations and increase the trafficking conducted” through its site. With Salesforce’s help, Backpage grew “to become the dominant force in online sex trafficking.” Backpage experienced “unprecedented growth” in both its business and profits and was transformed from a “small … company with a handful of employees to an international powerhouse with over 250 employees spanning three conti- nents.” From the beginning of 2008 through the end of 2010, Backpage’s gross revenues totaled $46 million. In 2012 alone, Backpage’s gross revenue was $71 million. And from January 2013 through May 2015, Backpage’s gross revenue climbed to approximately $346 million, nearly $340 million of which was generated from adult advertising. As Backpage’s bus iness expanded and its profits grew, “the scope of work covered by the Salesforce contracts,” as well as Salesforce’s profits from those contracts, also grew. Salesforce stopped doing business with Backpage only when it was shut down by the federal government in April 2018.
Two years later, in April 2020, G.G. and her mother filed this lawsuit in federal court seeking to hold Salesforce liable under Section 1595, as well as state common law theories, for the trafficking of G.G. In October 2021, plaintiffs fi led their third amended complaint, correcting for various deficiencies, abandoning the state law claims, and adding Backpage as a defendant. In short order, Salesforce moved to dismiss plain- tiffs’ complaint for failure to state a claim.
After plaintiffs voluntarily dismissed defendant Backpage
in February 2022, the district court granted Salesforce’s mo-
tion to dismiss.
G.G. v. Salesforce.com, Inc.
,
II. Analysis
A. Legal Standard
We review de novo both a district court’s legal conclusions
and its dismissal of a complaint for failure to state a claim un-
der Rule 12(b)(6).
Wirth v. RLJ Dental, S.C.
,
To be plausible rather than merely conceivable means that
the complaint’s “factual content … allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”
Firestone Financial Corp. v. Meyer
, 796
F.3d 822, 826 (7th Cir. 2015), quoting
Ashcroft v. Iqbal
, 556 U.S.
662, 678 (2009). The factual allegations must present “more
than a sheer possibility” that the defendant’s conduct is un-
lawful,
Iqbal
,
We explain next in Part B how plaintiffs have alleged a vi- able claim under 18 U.S.C. § 1595, addressing defendant Salesforce’s counterarguments as we go. We then turn in Part C to Salesforce’s attempt to establish a defense under 47 U.S.C. § 230.
B. Plausibly Alleging a Claim Under 18 U.S.C. § 1595 Plaintiffs seek relief under Section 1595(a), which creates a civil cause of action for victims of Section 1591 of Title 18: “An individual who is a victim of a violation of this chapter may 9 bring a civil action … .” We first ask whether plaintiffs have alleged that G.G. is the victim of a criminal violation of Sec- tion 1591, which has the title “Sex trafficking of children or by force, fraud, or coercion.” At the time of G.G.’s trafficking, Section 1591(a) provided in relevant part:
(a) Whoever knowingly — (1) in or affecting in- terstate or foreign commerce … recruits, entices, harbors, transports, provides, obtains, adver- tises, maintains, patronizes, or solicits by any m eans a person; or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act de- scribed in violation of paragraph (1), knowing, or, except where the act constituting the viola- tion of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commer- cial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).
18 U.S.C. § 1591(a) (2015).
*10 10
To prove a criminal violation of Section 1591, the govern- ment must prove that the defendant, with the requisite s tate of mind , either (1) engaged in one of the listed acts of sex traf- ficking or (2) benefitted from participating in a venture that engaged in one of those acts.
Plaintiffs have plausibly alleged that G.G. was a victim of violations of Section 1591. Obviously, there is G.G.’s street - level trafficker, who plaintiffs allege “used a combination of force, fraud, coercion, enticement, alcohol and drugs t o cause” G.G., who was a minor, to “engage” repeatedly “in commercial sex.” On these allegations, G.G.’s street -level traf- ficker could be criminally liable under Section 1591(a)(1): “Whoever knowingly … recruits, entices, harbors, transports, provides, obtains, [or] advertises … a person …, knowing … that means of force, threats of force, fraud, coercion …, or any combination of such means will be used to cause the person to engage in a commercial sex act.”
Plaintiffs also allege that Backpage violated Section 1591 by advertising G.G. for sale both before and after learning that she was under the age of 18. On such allegations, Backpage could be subject to criminal liability under both Section 1591(a)(1) and (a)(2). By “knowingly … advertis[ing]” G.G., “knowing, or … in reckless disregard of the fact … that [G.G. had] not attained the age of 18 years and [would] be caused to engage in a commercial sex act,” Backpage violated Section 1591(a)(1). And by “knowingly … benefit[ing] … from partic- ipation in” the str eet- level trafficker’s “venture which [was] engaged in” acts that violated Section 1591(a)(1), “knowing, or … in reckless disregard of the fact … that [G.G. had] not attained the age of 18 years and [would] be caused to engage 11 in a commercial sex act,” Backpage violated Section 1591(a)(2).
According to these allegations, then, G.G. was a victim of multiple violations of both Sections 1591(a)(1) and 1591(a)(2) at the hands of both her street - level trafficker and Backpage, so G.G. is a proper plaintiff under Section 1595. The statute’s remaining elements determine whether Salesforce is a proper defendant.
Section 1595 creates two kinds of civil liability: perpetrator liability and participant liability. First, since it was first en- acted, the statute has allowed the victim to sue “the perpetra- tor.” 18 U.S.C. § 1595(a). Under a theory of perpetrator liabil- ity, G.G. could have sued either her street level trafficker or Backpage, but neither is a defendant in this action. Second, since the 2008 amendment, the statute has allowed the victim to sue “whoever knowingly benefits, financially or by receiv- ing anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter,” which includes Section 1591. 18 U.S.C. § 1595(a). Plaintiffs here seek to hold Salesforce lia- ble as such a participant. [4]
*12 12
Under a theory of participant liability, a plaintiff like G.G. who is a victim of a criminal violation must allege and ulti- mately prove that (1) a venture has engaged in an act in vio- lation of Section 1591, (2) the defendant knew or should have known that the venture had violated Section 1591, (3) the de- fendant participated in that venture, and (4) the defendant knowingly benefited from its participation. [5]
1. A Venture Which Has Engaged in an Act in Violation of Section 1591
The first element is the existence of “a venture which …
has engaged in an act in violation” of Section 1591. 18 U.S.C.
§ 1595(a). That Backpage committed multiple violations of
Section 15 91 is not in question. As discussed, Backpage vio-
lated Sections 1591(a)(1) and (a)(2) when it advertised G.G. for
sale after learning that she was a minor and financially bene-
fited from participation in her street - level trafficking.
[6]
– 81, 182 (E.D. Pa. 2020);
Doe S.W. v. Lorain - Elyria Motel, Inc.
, No. 2:19 -
CV - 1194,
[5] We have reorganized the most common summaries of these ele- ments to follow a logical sequence rather than the sequence of the phrases in Section 1595. We hope this logical sequence may be useful in instructing juries about the issues they will need to consi der in trials under Section 1595 against alleged participants in sex trafficking ventures.
[6] In addition to these violations with respect to G.G., plaintiffs have alleged that Backpage’s business was substantially devoted to criminal sex trafficking. During the years when Backpage and Salesforce were working together, Backpage had engaged and was continuing to engage in
Salesforce argues that plaintiffs have failed to allege that it participated in a venture that has violated Section 1591. Ap- pellee’s Br. at 53 – 65. That argument challenges two distinct elements, as we understand the statute, which we have la- beled as element (1), the existence of a venture that violated Section 1591, and element (3), the defendant’s participation in the venture.
Plaintiffs have sufficiently alleged the existence of a ven- ture that violated Section 1591. The text of Section 1595 does not say “sex - trafficking venture,” but only “venture.” 18 U.S.C. § 1595(a). In other words, “venture” is not described in criminal terms. Indeed, it would make little sense if it did. The language that follows, “which … has engaged in an act in vi- olation of this chapter,” does that work, requiring the ven- ture’s criminality.
While Section 1595 does not define the term “venture,” Section 1591’s definition cuts against construing a “venture” narrowly as limited to a venture that is primarily a sex -traf- ficking venture. Section 1591 defines “venture” as “any group of two or more individuals associated in fact, whether or not a legal entity.” 18 U.S.C. § 1591(e)(5). While we decline to uncounted violations of Section 1591. When they entered into plea agree- ments with the Department of Justice in April 2018, Backpage and it s CEO admitted that Backpage had operated as a site for the sale of sex since 2004. In the three years before G.G.’s trafficking in 2016 — when Salesforce was facilitating the expansion of Backpage’s business — Backpage generated more than 99% of its revenue from adult advertising. Not all that activity was necessarily criminal, but plaintiffs have plausibly alleged that at least a significant portion of Backpage’s business involved criminal sex traffick- ing, “especially the trafficking of minors.” It is reasonable to infer that the Department of Justice shut down Backpage because it had violated federal criminal sex trafficking laws.
14
import Section 1591’s definition into Section 1595, we think it
safe to assume that Congress did not intend “venture” in Sec-
tion 1595, which establishes civil liability, to be any more de-
manding than “venture” in Section 1591, which establishes
criminal liability. See
Peyton v. Rowe
,
In short, we agree with the district court that the relevant
“venture” under Section 1595 need not be “specifically a sex
trafficking venture.”
G.G.
, 603 F. Supp. 3d at 644, quoting
M.A. v. Wyndham Hotels & Resorts, Inc.
,
Plaintiffs have alleged such a venture here. “By 2013,” plaintiffs allege, “Backpage found itself in need of a partner who could facilitate and support [Backpage’s] exponential growth.” The “venture” was Backpage’s business itself, in- cluding the “growth,” “expansion,” and profitability of that business.
2. Salesforce’s Constructive Knowledge That the Venture Had Engaged in an Act in Violation of Section 1591 The next question is whether plaintiffs have plausibly al- leged that Salesforce knew or should have known that Back- page’s venture had engaged in acts in violation of Section 1591. Section 1595 provides for participant liability where the defendant “knew or should have known” that the “venture … has engaged in an act in violation” of Section 1591. 18 U.S.C. § 1595(a). [9]
*16 16
Plaintiffs have plausibly alleged that Salesforce at least should have known that Backpage had repeatedly violated Section 1591 before Salesforce started working with Backpage and that Backpage was continuing to violate Section 1591 dur- ing their multi - year relationship.
According to the allegations in the complaint, by 2008 —
five years before Salesforce entered into its first contract with
Backpage — “law enforcement, United States Attorneys Gen-
eral, and every state Governor” had “publicly identified”
Backpage “as the biggest and most notorious sex trafficking
and pimping website in the United States.” In 2010, 21 state
attorneys general called on Backpage “to shut down its adult
services section.” After a First Circuit decision in March 2016,
Jane Doe No. 1 v. Backpage.com, LLC
,
Apart from this public information, plaintiffs are entitled
to a reasonable inference at this stage of the case that, based
on Salesforce’s relationship with Backpage, Salesforce either
“knew or should have known” that at least a substantial part
of Backpage’s business was illegal sextrafficking, including
trafficking of children. Federal Rule of Civil Procedure 9(b)
allows plaintiffs to plead knowledge “generally.” Plaintiffs
have more than met their burden under this standard, alleg-
ing facts tending to show with greater specificity than is re-
quired at this stage that Salesforce at least should have known
the nature of Backpage’s business. At least constructive
knowledge may be reasonably inferred from the allegations
that Salesforce repeatedly consulted with Backpage “to assess
its operational needs,” designed “targeted solution s ad-
dressed to” those needs, and provided active, “tailored,” and
ongoing support as Backpage worked to expand its business
and scale its operations. As the district court wrote, part of
Salesforce’s support for Backpage “require[d] Salesforce to
analyze content … provided by Backpage about its custom-
ers.”
G.G.
,
Salesforce disagrees, arguing that, under “the plain text” of Sections 1591 and 1595, a participant defendant must have had constructive knowledge of the specific victim of sex -traf- ficking, the plaintiff suing under Section 1595. Salesforce ar- gues that even if it knew or should have known that the ven- ture had vio lated Section 1591 with respect to other victims, it is off the civil hook unless plaintiffs can allege and later prove that it should have known about the trafficking of G.G. in par- ticular. Salesforce draws this conclusion from Section 1595’s use of the p hrases “ a venture” and “ an act.” 18 U.S.C. § 1595(a) (2008) (“[W]hoever knowingly benefits, financially or by re- ceiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter.”) (emphasis added).
We are not persuaded that “ a venture” and “ an act” mean “ the victim.” First, as explained above, “a venture” need not be primarily a sex- trafficking venture, so it need not be, as Salesforce suggests, “a particular ” sex trafficking venture. Even if it were, it would take an additional inferential leap to conclude that Section 1595 requires knowledge of a particular victim of that particular venture.
As for “an act,” Salesforce’s reading is contrary to the stat- utory text and overlooks differences between the two sec- tions. If Congress had meant in Section 1595 that the partici- pant must have had actual or constructive knowledge of the specific victim, it could have simply said so. It did not. Facing statutory text that does not say what it prefers, Salesforce asks us to make two interpretive moves to reach that result. First, Salesforce asks us to read “ an act” of sextrafficking as “ the act” of victimization that allowed the plaintiff to bring suit under Secti on 1595. Salesforce then asks us to assume that knowledge of the act means knowledge of the specific victim . This goes two bridges too far. We see no reason to rewrite the statutory text by substituting “the” for “an.” Even if we were willing to take that first step, we would still see no reason to require knowledge of a particular act to require knowledge of the victim’s identity. Salesforce is arguing, in effect, that the larger the sex - trafficking venture and the more extensive its participation in the venture— and so the less likely it is to have known the specifics of individual victim —the harder it should be for a victim to obtain civil relief.
The cases Salesforce cites to support its argument —all hotel sex - trafficking cases — simply do not support requiring knowledge of the specific victim. In S.J. v. Choice Hotels International, Inc. , 473 F. Supp. 3d 147 (E.D.N.Y. 2020), for example, the court found meaning in “a venture” and “an act” as used in Section 1595, but not the meaning Salesforce tries to extract. Rather, the court relied on these phrases to point out that even “knowledge or willful blindness of a general sex trafficking problem in low - budget lodgings” could not plausibly show “knowledge of a specific sex trafficking venture” at the hotels the defendant had franchised. Id. at 154. As the court correctly observed, to allow allegations that a civil defendant was aware of sporadic sex trafficking in low - budget hotels generally to show constructive knowledge of a particular sex trafficking venture “unjustifiably bridges the scienter gap between ‘should have known’ and ‘might have been able to guess.’” Id. In other words, the civil defendant n eeded to have constructive knowledge of a non generalized and non-sporadic— a “particular” — venture, but the court did *20 20
not go so far as to require knowledge of a particular victim. Id. [10]
Other cases on which Salesforce relies are not persuasive
here because they involved the trafficking of only one victim.
In such cases, knowledge of the specific victim goes hand -in-
glove with knowledge of the “venture.” E.g.,
Lundstrom
, 2021
WL 5579117, at *1 – 2, *6 – 8;
B.M.
,
If such sp ecificity were required, Section 1595 would be severely undermined in some of the most egregious cases. A company like Salesforce could simply bury its head in the sand with respect to individual victims. It could work, for ex- ample, only with high -level da ta on behalf of a venture that the company knows or should know is engaged in illegal sex trafficking on a large scale. By way of analogy, a taxi service 21 transporting trafficking victims on behalf of traffickers could claim that it lacked constructive knowledge where it knew that it was generally transporting trafficking victims so long as the drivers were shielded from seeing who specifically was in the back of their taxis. Or consider a prostitution ring that hires a construction company to build a better brothel, one that attracts more customers and is better insulated from the prying eyes of law enforcement. The contractor knows that the business is generally engaged in sex trafficking, but so long as the contractor does not know of any individual victim , it would be insulated from civil liability. In other words, the larger the sex - trafficking venture, the less likely a victim would be able to prove sufficient knowledge. Nothing in the statutory text requires such an odd result. [12]
In short, we agree with the majority of courts that have addressed Section 1595’s constructive knowledge require- ment that the statutory text does not require allegations and ultimately proof that the defendant knew or should have known of the specific victim who has brought the civil action. *22 22
To state a claim under Section 1595, a plaintiff needs to allege plausibly that the defendant had constructive knowledge that a venture generally has violated Section 1591. Knowledge of the specific victim, let alone knowledge of her identity , cf. post at 45 , is not required. Plaintiffs here have therefore sufficiently alleged constructive knowledge under Section 1595. [13]
3. Participation The next question is whether plaintiffs have sufficiently al- leged that Salesforce, with that constructive knowledge, par- ticipated in Backpage’s venture. They have.
Congress has not defined “participation” under Section
1595. Section 1591 defines “participation in a venture” as
“knowingly assisting, supporting, or facilitating a violation”
of Section 1591(a)(1). 18 U.S.C. § 1591(e)(4) (April 2018, De-
cember 2018). We agree with the Eleventh Circuit that we
should not import that definition into Section 1595. See
Red
Roof Inns
,
Mindful of that ceiling, we agree with the district court
that “participation” does not require “direct participation in
the sex trafficking.”
G.G.
,
[15] As one district court put it, a participant defendant need not have committed “some ‘overt act’ that furthers the sex trafficking aspect of the venture” or have “associated” with the sex trafficker “for the purpose of trafficking itself (e.g., transporting victims, providing hotel rooms) would satisfy Section 1595’s “participation” element, direct involvement goes beyond what the statutory text re- quires. Since the “venture” in question need not be primarily a sex - trafficking venture and the civil defendant itself need not have committed a criminal violation of Section 1591, “par- ticipation in” that venture need not i nvolve direct participa- tion in the sex trafficking itself. It is the venture that must vi- olate Section 1591, and not the participant.
We read “participation” in accord with our “ordinary un-
derstanding of culpable assistance to a wrongdoer,” which re-
quires only “a desire to promote the wrongful venture’s suc-
cess,”
Doe v. GTE Corp.
, 347 F.3d 655, 659 (7th Cir. 2003),
though Section 1595 does not require actual knowledge of
criminal wrongdoing. We agree with the district court that a
plaintiff may sufficiently allege such “culpable assistance” by
furthering the sex trafficking.”
M.A.
,
Plaintiffs have plausibly alleged here such a “continuous business relationship.” According to the allegations, *26 26
Backpage was trying “to keep pace with increasing customer demand and scale its platform,” so it sought out “a partner who could facilitate and support the company’s exponential growth.” According to plaintiffs, Backpage found that partner in Salesforce, which “entered into the first of several lucrative contracts with Backpage” in 2013. Through those contracts, Salesforce provided Backpage with “targeted solutions addressed to the needs of Backpage’s business,” repeatedly assessed Backpage’s “operational needs,” and provided “active, ongoing support” that was “tailored” to those needs. [18]
With that support, Backpage was able to build relatio n- ships with more street level traffickers, to increase the “scale [of] its operations,” and to “increase the trafficking con- ducted” through its site. During the course of their business relationship, which continued until Backpage was seized by the Departm ent of Justice, Backpage was transformed from a “small … company with a handful of employees to an inter- national powerhouse with over 250 employees spanning three continents.” In the first three years, Backpage’s gross revenues grew by a factor of five. And as Backpage expanded, so did the scope of Salesforce’s support and its income from the contracts. In short, Salesforce facilitated the growth of Backpage’s business, a business that was almost exclusively a sex - trafficking business and that had engaged i n multiple acts in violation of Section 1591, nay, whose business model was built upon systematic and widespread violations of Section 1591.
Salesforce argues that “participation” requires more, that plaintiffs have alleged only that Salesforce was “somehow connected” to Backpage’s sex trafficking enterprise. R. 26, Appellee’s Br. at 53. The argument is not persuasive. First, Salesforce argues that plaintiffs have failed to “connect Salesforce or its software” to “G.G.’s trafficking or her traf- ficker.” Put differently, Salesforce tries to narrow the focus of the “participation” inquiry to Backpage’s advertisements of G.G. herself, asserting that Salesforce had no specific involve- ment with those advertisements. That focus is simply too nar- row. As a matter of law, such a direct connection between Salesforce and G.G.’s trafficking is not necessary. Under Sec- tion 1595, we focus on participation in a “venture,” not partic- ipation in “an act in violation” of Section 1591. 18 U.S.C. § 1595. In other words, participant liability does not require direct participation in sex trafficking.
By Salesforce’s logic, there would be no “participation” where a company helped a drug kingpin expand his drug - trafficking operations writ large because the company might not have been involved in pushing drugs in a particular market. Or, for that matter, where a company helped a terror- ist organization grow its terrorist network because the com- pany could not be connected directly to a specific terrorist act. The statutory text does not support such narrowing interpre- tations. Contrary to Salesforce’s arguments, “participation” does not require getting your hands dirty. It is enough that plaintiffs allege that Salesforce facilitated the success of Back- page’s sex trafficking venture as a who le .
Furthermore, Salesforce’s argument fails to engage with plaintiffs’ actual allegations. Salesforce seems to assume that G.G. had only one trafficker —the street- level trafficker who physically forced her into prostitution. But that person was not G.G.’s sole sex trafficker under Section 1591. According to the allegations in plaintiffs’ complaint, Backpage was also a sex trafficker. Contrary to Salesforce’s assumptions, therefore, Salesforce was not one step removed from G.G.’s traffickers. It was in a direct, prolonged, and supportive contractual rela- tionship with one of those sex traffickers — Backpage.
Because of these differences, Salesforce’s reliance on the
Eleventh Circuit’s decision in
Doe #1 v. Red Roof Inns, Inc.
is
misplaced. In
Red Roof Inns
, t he Eleventh Circuit defined
“participation in a venture” as taking “part in a common
undertaking or enterprise involving risk and potential profit.”
On these allegations, the Eleventh Circuit concluded that plaintiffs had failed to allege that the franchisors had partici- pated in a “common undertaking or enterprise with the Does’ sex traffickers or others at the hotel who violated” Section 1591. Id . Key to the court’s reasoning was how the plaintiffs had chosen to define the alleged ve nture— specifically as a “sex trafficking” venture. The court wrote that, if the plaintiffs had alleged “that the franchisors participated in commercial ventures to operate hotels and that those hotel ventures vio- lated” Section 1591, the result might have been different. Id. (emphasis added). The court rejected this framing, however, because the plaintiffs had not alleged it in their complaint or presented it to the district court.
But here, plaintiffs have framed the venture in just those
terms. They allege that Salesforce “participated in commercial
ventures” with Backpage to grow its business and that Back-
page “violated the statute.” See
Red Roof Inns
,
element. See id. at 729 (Jordan, J., concurring) (“[S]imilar claims against … [the] franchisees … would withstand a Rule 12(b)(6) motion to dismiss.”). That is, Salesforce “took part in” the expansion and success of Backpage — “a common under- taking or enterprise involving risk and potential profit.” See id. at 725. [19]
In a similar vein, Salesforce argues that it merely provided Backpage with its software and Backpage did the rest. This argument also invites us to disregard plaintiffs’ actual allega- tions. We assume that “participation” requires more than pro viding off -the- shelf software (or other common products or services from furniture to telephones or pizza deliveries). But the allegations here do not paint Salesforce as an arms - length seller of off -the- shelf products. Plaintiffs allege that Salesforce “did not merely sell [Backpage] an off -the-shelf product that enabled Backpage to grow without the input of Salesforce.” “Rather, Salesforce sold Backpage targeted solu- tions addressed to the needs of Backpage’s business,” repeat- edly assessed Backpage’s “operational needs,” and provided “active, ongoing support” that was “tailored” to those needs.
These allegations defeat Salesforce’s reliance on
Doe v.
GTE Corp.
,
In
Backpage.com, LLC
, the Sheriff of Cook County had pres-
sured credit card companies to stop processing transactions
on Backpage.
The allegations here are different. According to plaintiffs, Salesforce was not a remote intermediary “indifferent” to Backpage’s enterprise. If Backpage had merely purchased an off -the- shelf product from Salesforce, as any company might purchase bookkeeping or word - processing software, then GTE and Backpage.com might help Salesforce. But plaintiffs have described a relationship between Salesforce and Back- page much closer than that between a web hosting service or a credit- card payment processor and a website. Salesforce and Backpage entered multiple contracts over a number of years whereby Salesforce provided Backpage with software de- signed specifically for Backpage and affirmative, “personal- ized support.” Salesforce’s support of Backpage’s business was not generic, but “targeted” to Backpage’s specific needs. Salesforce repeatedly consulted with Backpage, including its CEO, “to assess its operational needs” and provided “active, ongoing support” that was “tailored” to Backpage’s evolving *32 32
business. Thi s was not a sale by a “remote intermediary” but the active participation of a contractual partner.
Salesforce insists that our interpretation of “participation”
threatens to sweep up “a convenience store that sells dispos-
able cell phones or a clothing store that sells an outfit used as
a disguise.” These are precisely the kind of routine sales of
off -the- shelf products or standard services that we do not
view as amounting to “participation.” Salesforce supports its
policy concerns with
Twitter, Inc. v. Taamneh
,
The statute in
Twitter
, for example, authorizes civil liability
against “any person who aids and abets, by knowingly
providing substantial assistance, or who conspires with the
person who committed such an act of international terror-
ism.” 18 U.S.C. § 2333(d)(2). The Court’s opinion focused on
that language, which echoes the criminal law of aiding and
abetting and requires actual knowledge, “conscious, volun-
tary, and culpable participation in another’s wrongdoing.”
By comparison, Congress drafted Section 1595(a) so that participant liability for sex trafficking does not require proof of the criminal mens rea needed for aiding and abetting. Still, as explained above, we read Section 1595(a)’s standard of knowing benefit from participation in a venture that has vio- lated Section 1591 to require more than what Twitter called “mere passive nonfeasance” or an “arm’s length, passive, and largely indifferent” relationship with the criminal. See 143 S. Ct. at 1227. Plaintiffs here have alleged that Salesforce pro- vided Backpage with aid much more “direct, active, and sub- stantial” than was alleged in Twitter . See id. at 1228.
Salesforce also cites
United States v. Hansen
,
That holding might aid our reading of the criminal provi- sions of Section 1591, but it does not help with civil liability under Section 1595. Salesforce’s reliance on Hansen attempts to elide the difference between these two statutes and pro- poses to transplant Section 1591’s definition of “participation in a venture” into Section 1595. As explained above, though, that definition is expressly limited to Section 1591. Congress could have transplanted it into Section 1595 when amending the statutes in 2018, but it declined to do so. Compare 18 U.S.C. § 1591(e)(4) (2018) with 18 U.S.C. § 1595 (2018). We de- cline to do so as well.
In sum, plaintiffs have not, as Salesforce contends, “con- flated” Salesforce’s conduct with Backpage’s. Plaintiffs are seeking, as Section 1595(a) allows, to hold Salesforce liable for its own conduct in facilitating the success of Backpage’s busi- ness, which engaged in uncounted acts in violation of Section 1591, including those that harmed G.G. Based on the repeated and allegedly lucrative contracts between Salesforce and Backpage, we draw the reasonable inference in plaintiffs’ fa- vor that Salesforce participated with Backpage in the venture of Backpage’s sex trafficking business by helping it grow.
4.
Knowing Benefit
According to the language of Section 1595, a plaintiff can
allege that the defendant “knowingly benefitted” by alleging
only that the defendant was aware that it was benefitting in
some way from its participation in the venture. That’s it. As
the district court correctly observed, the benefit need not take
the form of “profits” that are “the specific result” of a sex -traf-
ficking venture.
G.G.
,
Salesforce thinks that the statutory text requires more. Re-
lying on one district court decision —
Geiss v. Weinstein Co.
Holdings LLC
,
In Geiss , three women brought a civil action against film producer Harvey Weinstein, his companies, and the compa- nies’ officers and directors alleging that Weinstein had sex- ually harassed and assaulted them and that “the other de- fendants knew of, facilitated, and covered up his miscon- duct.” Id. at 161– 62, 165, 167. The court found that the defend- ants “undoubtedly benefited” from Weinstein’s continued employment and that some of the revenue generated by Weinstein’s “movies and influence … flowed to” the defend- ants. Id. at 169. But that was not enough. As the court saw it, the “controlling question” was whether Weinstein “provided any of those benefits” to the other defendants “ because of [their] facilitation of [his] sexual misconduct.” Id. at 169 (em- phasis in original). In short, Geiss read “knowingly benefits” to require a quid pro quo between trafficker and participant. But Section 1595 says nothing about why the sex trafficker provi des any benefit to the participant -defendant. In fact, the statute does not even require that the sex trafficker itself or himself provide any benefit. Section 1595 uses the passive voice: “Whoever knowingly benefits….” 18 U.S.C. § 1595(a). *36 36
The Geiss court and Salesforce’s reading thus find no footing in the statutory text.
Again, as the statutory text clearly dictates, where the de- fendant is simply aware that it is benefiting, that is enough. According to the allegations here, Salesforce and Backpage ent ered into multiple contracts over several years that called for close business advice and consulting. Salesforce’s aware- ness that it was benefiting from those contracts is enough to satisfy the “knowingly benefits” element.
In sum, plaintiffs have plausibly alleged a claim under Section 1595. G.G. was a victim of multiple violations of Sec- tion 1591 at the hands of both her street level trafficker and Backpage. Backpage’s business was a venture that repeatedly engaged in acts that violated Section 1591, and Salesforce at least should have known that Backpage’s venture had vio- lated and was continuing to violate that statute. The continu- ous business relationship between Salesforce and Backpage 37 was sufficient to show that Salesforce participated in Back- page’s venture and knowingly benefitted from it.
C. Whether Defendant is Protected by 47 U.S.C. § 230(c) Salesforce also argues that even if plaintiffs have other- wise pled a viable claim under Section 1595, Section 230(c) of the Communications Decency Act, 47 U.S.C. § 230, gives Salesforce a complete defense. Again, we begin with the stat- ute’s text. Section 230(c) is entitled “Protection for ‘Good Sa- maritan’ blocking and screening of offensive material” and reads: “No provider or user of an interactive computer ser vice shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1) (1998).
As we have said repeatedly, Section 230(c)(1) “does not
create an ‘immunity’ of any kind.”
City of Chicago v. StubHub!,
Inc.
,
“provider or user of an interactive computer service,” and (2) the defendant is being “treated as the publisher or speaker” of (3) “information provided by another information content provider.” 47 U.S.C. § 230(c)(1).
A plaintiff “ordinarily need not anticipate and attempt to plead around affirmative defenses,” but dismissal may be ap- propriate if “the factual allegations in the complaint unambig- uously establish all the elements of the defense.” Hyson USA, Inc. v. Hyson 2U, Ltd. , 821 F.3d 935, 939 (7th Cir. 2016). The district court found that plaintiffs had pled themselves out of court with factual allegations that satisfied all three elements. First, the court found that plaintiffs’ allegations showed that Salesforce qualified as an “interactive computer service.” G.G. , 603 F. Supp. 3d at 634. [22] Because Salesforce—in the course of “managing … relationships” between “Backpage and its customers” — was required “to analyze … content pro- vided by Backpage about its customers,” the district court found that Salesforce was “an access software provider.” Id. at 635 (emphasis in original).
We need not resolve whether Salesforce qualifies as a “provider … of an interactive computer service.” The allega- tions do not support the second and third elements of Section 230(c)(1)’s affirmative defense. Plaintiffs’ claim does not treat Salesforce as (2) “the publisher or speaker” of (3) “information provided by another information content provider.” 47 U.S.C. § 230(c)(1).
Section 230(c) “might matter to liability for” claims that
“depend on who ‘publishes’ … information or is a
‘speaker’” — for, say, “defamation, obscenity, or copyright in-
fringement” — but where the claim does not depend on pub-
lishing or speaking, Section 230(c) “is irrelevant.”
StubHub
,
Here, plaintiffs’ allegations simply do not seek to treat Salesforce as a publisher or speaker. Plaintiffs’ claim does not depend on Salesforce having published or spoken anything. Rather, plaintiffs seek to hold Salesforce accountable for sup- porting Backpage, for expanding Backpage’s business, for providing Backpage with technology, for designing custom software for Backpage, for facilitating the trafficking of G.G., for helping Backpage with managing its customer relation- ships, streamlining its business practices, and improving its profitability, and for ena bling Backpage “to scale its operations *40 40
and increase the trafficking conducted on Backpage.” Dkt. 85,
¶¶ 1– 3, 33, 29 – 30, & 41. In other words, plaintiffs are seeking
to hold Salesforce “liable under [Section 1595] for its own …
acts or practices, rather th an for publishing content created by
another.” See
Federal Trade Comm’n v. LeadClick Media, LLC
,
We are not saying that “the name of the cause of action” —
defamation versus participation and so on—determines
whether a defendant can be treated as a publisher or speaker.
See
Barnes v. Yahoo!, Inc.
,
In this case, plaintiffs allege that Salesforce had a duty not to benefit knowingly from participating in Backpage’s ven- ture while knowing or having reason to know that the venture was engaged in sex trafficking. That duty does not depend in any way on Salesforce’s supposed “status or conduct as a ‘publisher or speaker.’” See id.
To be sure, Backpage itself was a publisher.
[24]
But the fact
that publishing was involved somewhere in G.G.’s trafficking
does not mean that Salesforce can successfully use Section
230(c) to shield itself from liability for having participated in
Backpage’s venture. Publishing activity was “a but -for cause
of just about everything” Backpage was involved in. See
Doe
v. Internet Brands, Inc.
,
But Section 230 “does not provide a general immunity against all claims derived from third -p arty content.” Id. Salesforce was simply not involved in any publishing. Salesforce’s job was, in part, to help Backpage reach more cus- tomers, both in the form of sex traffickers and purchasers of commercial sex. In a sense, Salesforce helped Backpage find more sex - trafficking contractors. Plaintiffs’ allegations there- fore 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.
Plaintiffs also have not alleged that Salesforce ever “pub-
lished” any
third - party
content. The only audience for the data
Salesforce put online was Backpage itself, and Backpage pro-
vided Salesforce with that data.
G.G.
,
third element, which requires that the published content be “provided by another information content provider.” 47 U.S.C. § 230(c)(1) (emphasis added).
The judgment of the district court is REVERSED, and this case is REMANDED for proceedings consistent with this opinion. 43
K IRSCH , Circuit Judge , dissenting. The majority and I agree that Salesforce lacked constructive knowledge that G.G. had been trafficked on Backpage.com in violation of 18 U.S.C. § 1591. The majority nevertheless concludes that the plaintiffs may hold Salesforce civilly liable under 18 U.S.C. § 1595 as a participant in sex trafficking because Salesforce sold custom- ized software to Backpage when it should have known that Backpage violated § 1591 as to some individual at some point in time, but not necessarily G.G. That broad reading of § 1595 would extend civil liability to nearly every company and in- dividual who did regular and personalized business with Backpage after it faced public allegations of sex trafficking. It also renders meaningless § 1595’s requirement that the de- fendant have constructive knowledge of a § 1591 violation. Because the plaintiffs have not alleged that Salesforce should have known of G.G.’s particular trafficking, they have failed to allege a § 1595 violation. I respectfully dissent.
Section 1595 authorizes victims of sex trafficking to bring damages suits against “the perpetrator [ ]or whoever know- ingly benefits … from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter.” § 1595(a). The “act in violation” here is § 1591, which makes it a crime to knowingly advertise “a person” or to benefit from participation in a venture that does so, “knowing … that means of force, threats of force, fraud, coercion …, or any combination of such means will be used to cause the person to engage in a commercial sex act, or … that [a minor] … will be caused to engage in a commer- cial sex act.” The majority and I agree that to be civilly liable as a participant in a venture that violated § 1591, by the plain language of § 1595, Salesforce must have had constructive knowledge of a § 1591 violation. But to the majority, a *44 44
defendant can violate § 1595 so as long as it had “constructive knowledge that a venture generally has violated Section 1591.” Ante , at 22. But there is no such thing as a general violation of § 1591. A violation depends on whether the elements of § 1591 are satisfied (or in this case, whether they are pled).
To plead a § 1595 violation, the plaintiffs must allege that
Salesforce had constructive knowledge of G.G.’s trafficking.
This is because § 1591’s use of the terms “a person” and “the
person” is victim-specific, meaning an individual is not guilty
of the crime unless the government can prove that his actions
were tied to a specific victim. Knowledge of a specific victim
(not just general sex trafficking) is an element of § 1591. Thus,
because § 1595 requires constructive knowledge of a § 1591
violation and a § 1591 violation requires knowledge of a spe-
cific victim, damages suits are available only when a plaintiff
plausibly alleges that the defendant should have known that
the venture engaged in her particular sex trafficking. See
Doe
#1 v. Red Roof Inns, Inc.
,
By holding that a defendant may be liable under § 1595 even if the plaintiff cannot plead the elements of a § 1591 violation, countless companies and individuals doing busi- ness with Backpage in 2008 or later could face liability so long as a plaintiff could allege a defendant’s constructive knowledge of Backpage’s sex trafficking and a beneficial, tai- lored relationship that assisted Backpage’s growth. But the text of § 1595 does not support that result.
Without constructive knowledge of G.G.’s identity and the trafficking offense committed against her (in other words, a § 1591 violation), the plaintiffs cannot bring a civil § 1595 claim against Salesforce. Because they have not alleged that Salesforce should have had such knowledge (or that Salesforce avoided learning of it), I would hold that the plain- tiffs failed to state a claim for relief under § 1595. Thus, I would not reach the issue of whether Salesforce is entitled to dismissal under 47 U.S.C. § 230. I respectfully dissent.
Notes
[1] See Judicial Confession and Stipulation and Certification of Discov- ery, Texas v. Backpage.com , No. 18FC 1653C (Tex. Dist. Ct. Apr. 9, 2018), available at https://digitalcommons.law.scu.edu/historical/1706/.
[2] The allegations in the complaint do not specify what portion of Back- page’s gross revenues were generated through the trafficking of minors, but at this stage of the litigation, we may infer in plaintiffs’ favor that the trafficking of minors constituted a significant source of revenue, particu- larly in light of the allegation that Backpage had been deemed a “hub” of “human trafficking, especially the trafficking of minors ” by the National As- sociation of Attorneys General.
[3] The referenced chapter is Chapter 77 of Title 18, which also includes criminal prohibitions on peonage, slavery, forced labor, and other forms of human trafficking, so Section 1595 offers a civil remedy for victims of those crimes, as well. We concentrate here on sex trafficking under Section 1591.
[4] Courts unanimously agree that a civil defendant under Section 1595
need not have violated Section 1591. E.g.,
Ricchio v. McLean
,
[7] In declining to import Section 1591’s definition of “venture” into Sec-
tion 1595, we recognize that the “‘normal rule of statutory construction’
[is] that words repeated in different parts of the same statute generally
have the same meaning.”
Law v. Siegel
,
[8] Nearly every court agrees. See
Lundstrom
,
[9] This is a negligence standard, and all courts agree that a defendant under Section 1595 must have had at least constructive knowledge that the “venture” in question has engaged in an act in violation of Section 1591
[10] Likewise, in
Doe 3
, another case cited by Salesforce, the court found
that allegations “that customers [had] complained about prostitution” tak-
ing place, generally, at the franchisors’ hotels was, on its own, insufficient
to meet Section 1595’s constructive knowledge requirement for the fran-
chisor itself, as distinct from individual franchisees .
[11] Salesforce’s remaining cases also do not help it. In all of them, the
civil defend ants did have constructive knowledge of the specific victim. See
S.Y.
,
[12] In
Twitter, Inc. v. Taamneh
,
[13] See
M.L.
,
[14] As with “venture,” Section 1591(e) limits definition of “participa-
tion in a venture” expressly to Section 1591. In addition, “we must nor-
mally seek to construe Congress’s work ‘so that effect is given to all pro-
visions, so that no part will be inoperative or superfluous, void or insig-
nificant.’”
Ysleta Del Sur Pueblo v. Texas
,
[16] See also
Doe v. Reddit, Inc.
, No. SACV 21 00768 JVS (KESx), 20 21 WL
5860904, at *7 – 8 (C.D. Cal. Oct. 7, 2021);
Mindgeek USA Inc.
, 558 F. Supp.
3d at 837 – 38;
Twitter, Inc.
,
[17] The district court wrote in this context that “Salesforce did not take
part in the construction of the business itself.”
G.G.
,
[18] Salesforce asserts that plaintiffs’ “characterization” of the software
and services it provided to Backpage “as ‘unique,’ targeted, or ‘personal-
ized,’” is “conclusory.” The district court seemed to accept this argument
in criticizing plaintiffs for not alleging more specific examples of
Salesforce’s custom -tailore d services.
[19] Salesforce’s reliance on
B.M.
,
[20] Consequently,
Geiss
is an outlier whose gloss on “knowingly bene-
fits” has been rejected by virtually every other court. See
Red Roof Inns,
Inc.
,
[21] In 2018, Congress amended Section 230 via the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), 47 U.S.C. § 230 (2018). Although the parties have devoted substantial portions of their briefs to how FOSTA functions when a Section 230 defense is raised, all agree that FOSTA comes into play only when the defendant has an other- wise viable defense under Section 230. Because we conclude that Salesforce cannot satisfy all the elements of Section 230’s affirmative de- fense, we need not reach questions raised about FOSTA’ s interpretation.
[22] “The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables com- puter access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2).
[23] “The term ‘access software provider’ means a provider of software (including client or server software), or enabling tools that do any one or more of the following: (A) filter, screen, allow, or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, dis- play, forward, cache, search, subset, organize, reorganize, or translate co n- tent.” 47 U.S.C. § 230(f)(4).
[24] Backpage’s successful invocation of Section 230 to shield itself from
liability in
Jane Doe No. 1 v. Backpage.com, LLC
,