Doe (1) et al v. Backpage.com, LLC et al
Filing
53
Judge Richard G. Stearns: ORDER entered granting 23 Motion to Dismiss for Failure to State a Claim. "For the foregoing reasons, defendants' motion to dismiss the Second Amended Complaint is ALLOWED. The Clerk is directed to enter judgment accordingly and close this case." (RGS, int2)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-13870-RGS
JANE DOE NO. 1, a minor child,
by her parent and next friend MARY ROE;
JANE DOE NO. 2;
and JANE DOE NO. 3, a minor child,
by her parents and next friends SAM LOE AND SARA LOE
v.
BACKPAGE.COM, LLC, CAMARILLO HOLDINGS, LLC
(f/k/a VILLAGE VOICE MEDIA HOLDINGS, LLC),
and NEW TIMES MEDIA, LLC
MEMORANDUM AND ORDER
ON DEFENDANTS’ MOTION TO DISMISS
May 15, 2015
STEARNS, D.J.
In this litigation, two important public policies collide head on – the
suppression of child sex trafficking and the promotion of a free and open
Internet. Plaintiffs Jane Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3 (the
Doe plaintiffs) seek redress in the form of money damages from defendants
Backpage.com, LLC; Camarillo Holdings, LLC (f/k/a Village Voice Media
Holdings, LLC); and New Times Media, LLC. The Doe plaintiffs allege that
they were molested and repeatedly raped after being advertised as sexual
wares on defendants’ website, backpage.com (Backpage).
Defendants
contend that most of the Doe plaintiffs’ claims are preempted by the
Communications Decency Act (CDA), 47 U.S.C. § 230, and that the
remaining intellectual property claims (unauthorized use of a person’s image
and copyright infringement) fail to state claims upon which relief may be
granted.
BACKGROUND1
Backpage is an online classifieds forum that groups goods and services
advertised for sale by geographic location and subject matter. At issue in this
case is the forum’s adult entertainment section and its subcategory offering
the services of “escorts.” The Doe plaintiffs allege that in the scungy world
of adult entertainment, this section of Backpage is a notorious haven for
promoters of the illicit sex trade, and even more troubling, the trafficking of
children for sex. The Doe plaintiffs contend that Backpage’s business model
depends in large part on the revenues it earns from its involvement in the
trafficking of children. To this end, Backpage is alleged to have structured
its adult entertainment section to lightly camouflage its illegal content to
divert the attention of law enforcement. In support, the Second Amended
Complaint (SAC) marshals the following facts:
On a motion to dismiss, the court accepts as true the well-pleaded
facts of a complaint.
2
1
● Backpage charges a fee for posting advertisements in the adult
entertainment section (and not in most other licit areas of the
website). The fee for the “adult” ads ranges from $12.00 to $17.00
per posting. Backpage charges an additional fee for each reposting
of an adult ad, and for featuring the ad (with a selection of text and
photos) prominently on the right side of the website.
● Backpage does not require posters in the adult entertainment
section to verify their identity. The website also does not require
that the poster use a registered credit card linked with a name and
address, and accepts anonymous payments in the form of prepaid
credit cards, or pseudo-currencies, such as Bitcoin.
● Backpage does not require a poster to verify the age of an “escort”
whose services are offered on the website. Although the website will
not accept an ad when the poster enters an age of less than 18, it will
permit the poster to immediately re-enter an assumed age.
● Backpage does not require any verification of the telephone
numbers posted in its adult entertainment section. It also permits
users to enter telephone numbers using any combination of
character strokes rather than in the more traceable (by law
enforcement) nominal numbers required in other sections of the
website (such as “twoO13fourFive678niNe” rather than “201-3456789”).
Backpage does not require posters in the adult
entertainment section to use their actual email addresses, but
provides an email forwarding service that protects a poster’s
anonymity.
● Backpage strips out metadata associated with photographs (such as
date, time, geolocation and other identifying information) before
publishing the photographs on its website. This prevents law
enforcement from effectively searching for repostings of the same
photograph.
● While Backpage bars the use of certain words and phrases through
its “automatic filtering” system, such as “barely legal,” “high
school,” “innocent,” “sex,” “blow job,” “hand job,” “schoolgirl,”
“teen”, and “teenage,” it readily permits the use of suggestive
3
circumlocutions like “girl,” “young,” “underage,” and “fresh.” It also
does not filter out easily recognizable abbreviations of forbidden
words, such as “brly legal” or “high schl.”
The Doe plaintiffs further allege that defendants have waged a phony
war against sex traffickers to divert attention from their illegal activities.
While Backpage claims that its adult entertainment advertisements are
screened by trained moderators, it has refused to install readily available
technology that would far more accurately detect the trafficking of children.
According to the Second Amended Complaint, Backpage’s highly touted
claim to make regular referrals to the National Center of Missing & Exploited
Children has led to few instances of identification or rescue. Although
Backpage will on request remove an offending ad in the geographic location
in which it is posted, it does nothing to report or remove the identical ad
posted in other geographical areas, or other ads involving the same child.
The overall effect, the Doe plaintiffs contend, is to create a Potemkin-like
“façade of concern” that obscures the shady source of its filthy lucre. SAC ¶
34.
Jane Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3 aver that they have
been each personally harmed by defendants’ unsavory business practices.
Jane Doe No. 1 was first trafficked by pimps on Backpage after running away
from home in February of 2012, when she was 15 years old. She was again
4
sold on Backpage in March of 2013, after she ran away a second time.
Between June of 2013 and September 10, 2013, her “services” were
advertised on Backpage each and every day. As a result of the ads, she
engaged in 10 to 12 sex transactions daily with adult men in Massachusetts
and Rhode Island. Her pimp moved her from town to town every two days
to avoid detection. Jane Doe No. 1 appeared on some 300 ads on Backpage
and was raped over 1,000 times.
Backpage listed each ad featuring Jane Doe No. 1 as an offer of “escort”
services, a common euphemism for prostitution. The Jane Doe No. 1 ads
included known signifiers for child prostitution such as “young,” “girl,”
“fresh,” “tiny,” “roses,” and “party.” Jane Doe No. 1’s pimp provided a
prepaid mobile phone and a prepaid credit card to conceal Jane Doe No. 1’s
identity when Jane Doe No. 1 placed ads on Backpage. When Jane Doe No.
1 attempted to enter her true age (which was under 18) during the purchase
of an ad, Backpage would instruct her to enter her age as 18 or older.
Photographs of Jane Doe No. 1 (with her facial features obscured, but at least
on one occasion displaying a unique tattoo) accompanied all of her ads.
Jane Doe No. 2 was trafficked on Backpage by her pimp during various
periods between 2010 and 2012 at different locations in Massachusetts. She
first appeared on Backpage when she was 15 years old, after she had
5
absconded from a residential program. Ads featuring Jane Doe No. 2 were
posted either by her pimp or an older woman who worked with him (his
“bottom”). The ads would appear on Backpage on average six times a day.
Jane Doe No. 2 was given a prepaid mobile phone to answer calls from
would-be customers generated by the Backpage ads. As a result of the ads,
she was coerced into 5-15 sex transactions every day. Like the ads of Jane
Doe No. 1, those of Jane Doe No. 2 featured her photograph. The ads were
placed using a prepaid credit card. Altogether, Jane Doe No. 2 was raped
over 900 times while in the thrall of her pimp.
Jane Doe No. 3 was trafficked on Backpage in December of 2013 by her
pimp and one or more of his associates. The Backpage solicitations for the
underage Jane Doe No. 3 described her as “new,” “sweet,” and “playful.” As
with the other Jane Does, the ads were paid for with a prepaid credit card.
Jane Doe No. 3 was also given a mobile phone to take calls and texts from
customers. She was taken to a hotel in Foxborough, Massachusetts, where
she was raped by men who responded to the ads. Photos of Jane Doe No. 3,
6
including one that she had taken of herself, appeared with the ads on
Backpage.2
The Doe plaintiffs brought this lawsuit in October of 2014. In their
Second Amended Complaint, they allege that defendants’ business practices
violate the Trafficking Victims Protection Reauthorization Act of 2008
(TVPRA), 18 U.S.C. § 1595 (Count I); the Massachusetts Anti-Human
Trafficking and Victim Protection Act of 2010 (MATA), Mass. Gen. Laws ch.
265, § 50 (Count II); and constitute unfair and deceptive business practices
under the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch.
93A, § 9 (Count III). The Doe plaintiffs also bring claims for unauthorized
use of pictures of a person, Mass. Gen. Laws. ch. 214, § 3A and R.I. Gen. Laws
§ 9-1-28 (Count IV), and copyright infringement (specific to the photograph
taken by Jane Doe No. 3 of herself) (Count V).
In January of 2015,
defendants moved to dismiss the Second Amended Complaint pursuant to
Fed. R. Civ. P. 12(b)(6). The parties and several amici curiae3 filed helpful
briefs. The court heard oral argument on April 15, 2015.
At some point, Jane Doe No. 3’s parents became aware of the ads
featuring their daughter on Backpage and demanded that they be taken
down. A week later, the illicit ads still appeared on the website.
2
3 The City and County of San Francisco, the City of Atlanta, the City and
County of Denver, the City of Houston, the City of Philadelphia, and the City
of Portland (Oregon) (collectively the local government amici) and the
7
DISCUSSION
To survive a Rule 12(b)(6) motion to dismiss, the factual allegations of
a complaint must “possess enough heft” to set forth “a plausible entitlement
to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 559 (2007); see also
Thomas v. Rhode Island, 542 F.3d 944, 948 (1st Cir. 2008). As the Supreme
Court has emphasized, this standard “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do.
Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal citations and quotation marks omitted).
Defendants rely primarily on the immunity provided by Congress in
enacting 47 U.S.C. § 230, that “[n]o provider or user of an interactive
computer service shall be treated as the publisher or speaker of any
information provided by another information content provider,” id. §
230(c)(1), and the concomitant preemption of “cause[s] of action . . . brought
Commonwealth of Massachusetts submitted two amicus briefs in support of
plaintiffs. The Electronic Frontier Foundation, the Center for Democracy &
Technology, and Professor Eric Goldman (of Santa Clara University School
of Law) (collectively EFF) submitted an amicus brief in support of
defendants.
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. . . under any State or local law that is inconsistent with this section.” Id. §
230(e)(3).4 There is no dispute that defendants are, as the operators of
Backpage, providers of an interactive computer service. Defendants contend
that because the Doe plaintiffs allege they were harmed by the contents of
postings that defendants had no part in creating, the claims fall squarely
within Congress’s exemption of interactive computer service providers from
liability for third-party Internet content.
Congress enacted section 230 in 1996, while the Internet was still in its
infancy.
Congress explained the purposes of the law in five pertinent
findings:
(1) The rapidly developing array of Internet and other interactive
computer services available to individual Americans represent
an extraordinary advance in the availability of educational and
informational resources to our citizens.
The Doe plaintiffs argue that the court should first assess the
plausibility and sufficiency of the factual allegations relevant to each claim
before reaching the immunity issue. However, the entitlement to immunity
under section 230 is not only an affirmative defense, but also the right to be
immune from being sued. See, e.g., Carafano v. Metrosplash.com, Inc., 339
F.3d 1119, 1125 (9th Cir. 2003); accord Klayman v. Zuckerberg, 753 F.3d
1354, 1357 (D.C. Cir. 2014) (Section 230 “can [] support a motion to dismiss
if the statute’s barrier to suit is evident from the face of the complaint.”);
Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015) (same).
As the Supreme Court counsels, a claim of entitlement to immunity should
be “resolv[ed] . . . at the earliest possible stage in litigation.” Hunter v.
Bryant, 502 U.S. 224, 227 (1991).
4
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(2) These services offer users a great degree of control over the
information that they receive, as well as the potential for even
greater control in the future as technology develops.
(3) The Internet and other interactive computer services offer a
forum for a true diversity of political discourse, unique
opportunities for cultural development, and myriad avenues for
intellectual activity.
(4) The Internet and other interactive computer services have
flourished, to the benefit of all Americans, with a minimum of
government regulation.
(5) Increasingly Americans are relying on interactive media for a
variety of political, educational, cultural, and entertainment
services.
47 U.S.C. § 230(a). Consistent with these findings, section 230 reflects the
“policy of the United States”
(1) to promote the continued development of the Internet and
other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that
presently exists for the Internet and other interactive computer
services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which
maximize user control over what information is received by
individuals, families, and schools who use the Internet and other
interactive computer services;
(4) to remove disincentives for the development and utilization
of blocking and filtering technologies that empower parents to
restrict their children’s access to objectionable or inappropriate
online material; and
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(5) to ensure vigorous enforcement of Federal criminal laws to
deter and punish trafficking in obscenity, stalking, and
harassment by means of computer.
Id. § 230(b).
The Doe plaintiffs argue that because the Internet has matured since
the enactment of section 230, the principal policy consideration that
animated Congress (promoting the growth of the Internet by insulating it
from regulatory restrictions and lawsuits) no longer has the assuasive force
that it may once have had. They cite the characterization of section 230’s
immunity guarantee as an affirmative defense in cases like Klayman and
Ricci as evidence that the courts have been whittling back the scope of section
230 immunity as the Internet has shed its training wheels. See Klayman,
753 F.3d at 1357; Ricci, 781 F.3d at 28. The argument, however, does not
bear scrutiny. Both the Klayman and Ricci courts, whatever the label they
used to describe section 230’s effect, found the interactive computer service
providers at issue to be immune from any imputation of liability for thirdparty speech. Klayman, 753 F.3d at 1357-1359; Ricci, 781 F.3d at 27-28.
Moreover, Congress, far from lowering the immunity bar, ratcheted it up in
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2010 by expanding the scope of section 230 immunity to preempt the
enforcement of inconsistent foreign judgments. See 28 U.S.C. § 4102(c)(1).5
The local government amici attempt to repackage Backpage as an
“information content provider,” an entity that section 230 defines as “any
person or entity that is responsible, in whole or in part, for the creation or
development of information provided through the Internet or any other
interactive computer service.” 47 U.S.C. § 230(f)(3). Their ultimate point is
that information content providers are excluded from the immunity granted
by section 230. The amici contend that Backpage generates content by: (1)
posting illegal materials in sponsored ads; (2) stripping metadata from
posted photos; (3) coaching the crafting of ads by allowing misspellings of
suggestive terms; and (4) designing the escorts section of the website in such
a way as to signal to readers that sex with children is sold here. The amici
argument relies heavily on Fair Hous. Council of San Fernando Valley v.
Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008). In that case, the Ninth
Section 4102(c)(1) reads as follows: “Notwithstanding any other
provision of Federal or State law, a domestic court shall not recognize or
enforce a foreign judgment for defamation against the provider of an
interactive computer service, as defined in section 230 of the
Communications Act of 1934 (47 U.S.C. 230) unless the domestic court
determines that the judgment would be consistent with section 230 if the
information that is the subject of such judgment had been provided in the
United States.”
5
12
Circuit determined Roommates.com, a roommate matching service, to be an
“information content provider” shorn of section 230 immunity because it
elicited information about personal characteristics of users that is forbidden
by the Fair Housing Act. Id. at 1169-1170. The Court reasoned that
Roommate’s connection to the discriminatory filtering process is
direct and palpable: Roommate designed its search and email
systems to limit the listings available to subscribers based on sex,
sexual orientation and presence of children. Roommate selected
the criteria used to hide listings, and Councils allege that the act
of hiding certain listings is itself unlawful under the Fair Housing
Act, which prohibits brokers from steering clients in accordance
with discriminatory preferences.
Id.
To get to its result, the Court in Roommates attempted to draw a line
between active control of the content of a web posting and the provision of a
neutral interactive service that simply replicates offending third-party
matter.6
If an individual uses an ordinary search engine to query for a
“white roommate,” the search engine has not contributed to any
alleged unlawfulness in the individual’s conduct; providing
neutral tools to carry out what may be unlawful or illicit searches
does not amount to “development” for purposes of the immunity
exception. . . . Similarly, a housing website that allows users to
specify whether they will or will not receive emails by means of
user-defined criteria might help some users exclude email from
Roommates is one of the few sentinels denying section 230 immunity
left standing among some 300 cases (as of 2012) that have decided the issue.
See Hill v. StubHub, Inc., 219 N.C. App. 227, 239 (2012).
13
6
other users of a particular race or sex. However, that website
would be immune, so long as it does not require the use of
discriminatory criteria. A website operator who edits usercreated content – such as by correcting spelling, removing
obscenity or trimming for length – retains his immunity for any
illegality in the user-created content, provided that the edits are
unrelated to the illegality.
Id. at 1169 (bold emphasis added). This latter passage lays out the distinction
that afforded immunity to craigslist.com, an online classifieds forum that
also published discriminatory housing ads. “Nothing in the service craigslist
offers induces anyone to post any particular listing or express a preference
for discrimination; for example, craigslist does not offer a lower price to
people who include discriminatory statements in their postings.” Chicago
Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519
F.3d 666, 671-672 (7th Cir. 2008).
Singly or in the aggregate, the allegedly sordid practices of Backpage
identified by amici amount to neither affirmative participation in an illegal
venture nor active web content creation. Nothing in the escorts section of
Backpage requires users to offer or search for commercial sex with children.
The existence of an escorts section in a classified ad service, whatever its
social merits, is not illegal. The creation of sponsored ads with excerpts
taken from the original posts reflects the illegality (or legality) of the original
posts and nothing more. Similarly, the automatic generation of navigational
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path names that identify the ads as falling within the “escorts” category is not
content creation. See Seldon v. Magedson, 2014 WL 1456316, at *5-6 (D.
Ariz. April 15, 2014). The stripping of metadata from photographs is a
standard practice among Internet service providers. Hosting anonymous
users and accepting payments from anonymous sources in Bitcoins,
peppercorns, or whatever, might have been made illegal by Congress, but it
was not.
Backpage’s passivity and imperfect filtering system may be
appropriate targets for criticism, but they do not transform Backpage into an
information content provider.
Although the Doe plaintiffs recognize that defendants did not author
the content of the offending ads, see Opp’n at 16 (“Plaintiffs’ trafficking
claims do not seek to ‘impute’ to [d]efendants any advertisements created by
others”), they challenge the breadth of the immunity sought by defendants.
Count I alleges a violation of a section of the TVPRA, a federal statute that
criminalizes sex trafficking. As the Doe plaintiffs note, section 230 expressly
states that “[n]othing in this section shall be construed to impair the
enforcement of section 223 or 231 of this title, chapter 71 (relating to
obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or
any other Federal criminal statute.”
47 U.S.C. § 230(e)(1) (emphasis
added). Plaintiffs contend that defendants’ business practices, “even if the
15
advertisements had never been posted,” Opp’n at 16, are sufficient to make
out a violation of the TVPRA. Furthermore, according to the Doe plaintiffs,
section 230 only immunizes “action voluntarily taken in good faith to restrict
access to or availability of material that the provider or user considers to be
obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is constitutionally protected.” 47
U.S.C. § 230(c)(2)(A) (emphasis added). The Doe plaintiffs argue that their
claims are of a different sort – they allege that defendants have intentionally
and in bad faith hidden behind ineffectual counter-trafficking measures to
deflect the scrutiny of law enforcement and social services agencies. Count
II alleges a violation of the MATA, the Massachusetts analog to the TVPRA.
The Doe plaintiffs argue that, because claims under the TVPRA are exempt
from the scope of section 230’s immunity, the claim under MATA does not
depend on “inconsistent state law” preempted by section 230. Count III,
which presses a claim of unfair and deceptive businesses practices under
Massachusetts law, is alleged to arise not from the posted ads and their
contents, but from the architecture of Backpage itself, which the Doe
plaintiffs contend is constructed to conceal illegal activity from law
enforcement. Finally, the Doe plaintiffs rely on Congress’s stricture that
section 230 “shall not be construed to limit or expand any law pertaining to
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intellectual property,” id. § 230(e)(2), as preserving the intellectual property
claims (unauthorized publicity and copyright infringement).7 I will examine
the viability of each count in turn.
Civil Remedy under the TVPRA
18 U.S.C. § 1595 provides victims of trafficking the right to bring a
private civil action for restitution against “whoever knowingly benefits,
financially or by receiving 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.”
The parties dispute whether a civil action
authorized by a criminal statute can be construed as “enforcement of . . . a
Federal criminal statute” exempt from the immunity provided by section
230(e)(1).8
Defendants do not rely on section 230 immunity with respect to the
copyright infringement claim, but contend, to be discussed infra, that it
should be dismissed on other grounds.
7
The Doe plaintiffs, citing Barnes v. Yahoo!, 570 F.3d 1096 (9th Cir.
2009), also contend that their TVPRA claim falls outside of the protections
of section 230 immunity because section 1595 imposes a duty of care on
defendants wholly independent of their role as publishers of speech. In
Barnes, the Ninth Circuit barred a negligent undertaking claim under
Oregon law that sought to hold Yahoo liable for an alleged failure to remove
indecent profiles of a plaintiff that had been posted by her ex-boyfriend
because the claim attempted to impose publisher liability on Yahoo for
content created by a third party. Id. at 1102-1105 (“The word ‘undertaking,’
after all, is meaningless without the following verb. That is, one does not
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8
The
Doe
plaintiffs
maintain
that
the
statutory
language,
“enforce[ing] . . . a Federal criminal statute,” implies more than a
dependence on criminal prosecution alone. See Black’s Law Dictionary (10th
ed. 2014) (to “enforce” is “[t]o give force or effect to” or “[l]oosely, to compel
a person to pay damages for not complying with . . . .”). Further, plaintiffs
contend that civil actions are frequently authorized as part and parcel of the
enforcement regime behind criminal statutes. See Luka v. Procter & Gamble
Co., 785 F. Supp. 2d 712, 719 (N.D. Ill. 2011) (“[C]ivil enforcement
mechanisms [] permit private parties to sue to enforce statutory
merely undertake; one undertakes to do something. And what is the
undertaking that Barnes alleges Yahoo failed to perform with due care? The
removal of the indecent profiles that her former boyfriend posted on Yahoo’s
website. But removing content is something publishers do, and to impose
liability on the basis of such conduct necessarily involves treating the liable
party as a publisher of the content it failed to remove.”).
The Court did, however, allow a claim of promissory estoppel to stand
on the allegation that a Director of Communications at Yahoo had contacted
plaintiff and promised to remove the offending ads, but failed to do so in a
timely manner. Id. at 1107-1109. “Contract liability here would come not
from Yahoo’s publishing conduct, but from Yahoo’s manifest intention to be
legally obligated to do something, which happens to be removal of material
from publication.” Id. at 1107. There is no claim by the Doe plaintiffs that
any such assurance was given to them by Backpage. As Barnes illustrates,
the existence of a statutory remedy without more does not give rise mirabile
dictu to a tort duty. If it did, there would no need to create such a remedy in
the first place.
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prohibitions.” (emphasis added)). Plaintiffs also rely on dicta in Nieman v.
Versuslaw, Inc., 2012 WL 3201931, at *9 (C.D. Ill. Aug. 3, 2012), surmising
that section 230 “arguably . . . may not be used to bar a civil RICO claim
because that would impair the enforcement of a Federal criminal statute.”
Defendants, for their part, point out that courts have consistently
rejected this argument in a section 230 immunity context. In Doe v. Bates,
2006 WL 3813758 (E.D. Tex. Dec. 27, 2006), the court held that Yahoo could
not be held civilly liable for allegedly knowingly hosting child pornography
on a user site styled as the Candyman e-group. The Magistrate Judge
examined “th[is] issue of first impression” in scholarly detail that is worth
quoting at length. Id., at *3.
The plain text of the statute establishes that the 230(e)(1)
exception does not encompass private civil claims. As argued by
Defendant, the common definition of the term “criminal,” as well
as its use in the context of Section 230(e)(1), specifically excludes
and is distinguished from civil claims. The term “criminal” is
defined as “[c]onnected with the administration of penal justice.”
Black’s Law Dictionary 302; see also American Heritage
Dictionary of the English Language 430 (4th ed. 2000) (defining
“criminal” as “[r]elating to the administration of penal law”).
The term “civil” is defined as follows: “[o]f or relating to private
rights and remedies that are sought by action or suit, as distinct
from criminal proceedings.” Black’s Law Dictionary 262
(emphasis added). In addition, Congress’ use of the word
“enforcement” in Section 230(e)(1) again confirms that the
exception refers to governmental action, not civil actions by a
private litigant.
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Congress did not bifurcate any statutes as asserted by Plaintiffs.
Rather, as noted by Defendant, it preserved the ability of law
enforcement officials to enforce the federal criminal laws to their
fullest extent while at the same time eliminating the ability of
private plaintiffs to pursue service-provider defendants. Given
the complexity of Title 18 and the availability of civil remedies in
statutes throughout the criminal code, Congress achieved its
intended result using simple language making it clear that
Section 230’s limits on civil liability would not affect
governmental enforcement of federal criminal laws.
As noted by Defendant, Plaintiffs’ invocation of Section 230(e)(1)
rests on their generalized policy arguments rather than the text
of the statute. Plaintiffs’ core argument appears to be that
Section 230(e)(1) must exempt civil claims under the child
pornography statutes because child pornography is “not to be
tolerated” and “[i]f the prospect of civil liability provides a
disincentive for engaging in child pornography over and above
that provided by the prospect of fines and jail time, then that is a
good thing.”
Child pornography obviously is intolerable, but civil immunity
for interactive service providers does not constitute “tolerance”
of child pornography any more than civil immunity from the
numerous other forms of harmful content that third parties may
create constitutes approval of that content. Section 230 does not
limit anyone’s ability to bring criminal or civil actions against the
actual wrongdoers, the individuals who actually create and
consume the child pornography. Here, both the neighbor [who
created the child pornography] and the moderator of the
Candyman web site have been prosecuted and are serving
sentences in federal prison. Further, the section 230(e)(1)
exemption permits law enforcement authorities to bring criminal
charges against even interactive service providers in the event
that they themselves actually violate federal criminal laws.
Regarding civil liability, however, Congress decided not to allow
private litigants to bring civil claims based on their own beliefs
that a service provider’s actions violated the criminal laws. As
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Defendant explained in its briefing, the reason is evident. If civil
liability were possible, the incentive to bring a civil claim for the
settlement value could be immense, even if a plaintiff’s claim was
without merit. Even if it ultimately prevailed, the service
provider would face intense public scrutiny and substantial
expense. Given the millions of communications that a service
provider such as Defendant enables, the service provider could
find itself a defendant in numerous such cases. Congress
determined that it wanted to eliminate the resulting
disincentives to the development of vibrant and diverse services
involving third-party communication, while maintaining the
ability of criminal prosecutions by the government for violations
of federal criminal law. In sum, Congress did intend to treat civil
and criminal claims differently and carefully crafted Section
230(e)(1) to achieve exactly that result. Plaintiffs’ claim, although
novel, is untenable and without merit.
Id., at *21-22.
The District Judge adopted the Magistrate Judge’s opinion, also noting
that
[t]he legislative history [] buttresses the Congressional policy
against civil liability for internet service providers. One key
proponent of an amendment containing the language of § 230 at
issue explained that “the existing legal system provides a massive
disincentive for the people who might best help us control the
Internet to do so.” 141 Cong. Rec. H8469. Several legislators
identified “obscenity” in particular as material that could be
more freely regulated as a result of the immunity provided by the
statute. Another proponent noted that “[t]here is no way that
any of [the internet service providers], like Prodigy, can take the
responsibility to edit out information that is going to be coming
in to them from all manner of sources onto their bulletin
board. . . . We are talking about . . . thousands of pages of
information every day, and to have that imposition imposed on
them is wrong.” Id. at H8471. The House approved the
amendment by a vote of 410 to 4. Id. at H8478.
21
Id., at *4. The court concluded that on the basis of this legislative history,
“Congress decided not to allow private litigants to bring civil claims based
on their own beliefs that a service provider’s actions violated the criminal
laws.” Id., at *5.
In M.A. ex rel. P.K. v. Vill. Voice Media Holdings, LLC, 809 F. Supp.
2d 1041 (E.D. Mo. 2011), the court adopted the reasoning of Bates and
rejected the identical argument from plaintiff, a victim of child sex
trafficking, that section 230 carved out an exemption for the civil claim that
she had brought against Backpage under 18 U.S.C. § 1595. Id. at 1055-1056.
Similarly, in Obado v. Magedson, 2014 WL 3778261 (D.N.J. July 31, 2014),
the court rejected plaintiff’s effort to claim private redress for defendants’
alleged criminal conspiracy to violate his rights. Id., at *8. “Even if Plaintiff
had alleged any facts to sustain this claim, the CDA exception for federal
criminal statutes applies to government prosecutions, not to civil private
rights of action under stat[utes] with criminal aspects.” Id.
Although the Doe plaintiffs challenge this line of cases as “flawed,” the
court is persuaded that criminal and civil actions differ in kind and that
section 230 exempts only criminal prosecutions.
Section 1595 itself
recognizes that although a private right of action may be complementary to
22
government interests in combating trafficking, a civil action primarily
vindicates private interests and must take a back seat to a criminal
prosecution. See 18 U.S.C. § 1595(b)(1) (“Any civil action filed under this
section shall be stayed during the pendency of any criminal action arising out
of the same occurrence in which the claimant is the victim.”). The court also
finds persuasive amici EFF’s argument that only criminal prosecutions are
exempted from section 230’s immunity because they are subject to the filter
of prosecutorial discretion and a heightened standard of proof, making them
less likely to have a chilling effect on the freedom of online speech.9
The Doe plaintiffs’ next argument, that section 230 only immunizes
“good faith” efforts to restrict access to offensive materials, has also failed to
find support in the decided cases.
Section 203(c)(1) states that “[n]o
provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information
content provider.” Section 230(c)(2) further provides that
Defendants also contend that plaintiffs fail to make out a case under
18 U.S.C. § 1595 because they do not allege that defendants shared the
traffickers’ criminal intent. Plaintiffs counter that section 1595 imposes
liability not only for aiding and abetting, but more broadly for “participation
in a venture which that person knew or should have known has engaged in
an act in violation of this chapter.” Id. § 1595(a) (emphasis added). The court
need not decide this issue because it holds that this claim is preempted by
section 230 immunity.
23
9
[n]o provider or user of an interactive computer service shall be
held liable on account of –
(A) any action voluntarily taken in good faith to restrict
access to or availability of material that the provider or user
considers to be obscene, lewd, lascivious, filthy, excessively
violent, harassing, or otherwise objectionable, whether or not
such material is constitutionally protected; or
(B) any action taken to enable or make available to
information content providers or others the technical means to
restrict access to material described in paragraph (1).
Where section 230(c)(1) exempts an interactive service provider from
liability for publishing third-party content, section 230(c)(2) also immunizes
these providers from liability for actions taken in good faith to restrict
offensive content.
[Section] 230(c)(1) contains no explicit exception for
impermissible editorial motive, whereas § 230(c)(2) does
contain a “good faith” requirement for the immunity provided
therein. That § 230(c)(2) expressly provides for a good faith
element omitted from § 230(c)(1) indicates that Congress
intended not to import a subjective intent/good faith limitation
into § 230(c)(1). “[W]here Congress includes particular language
in one section of a statute but omits it in another . . . , it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Keene Corp.
v. United States, 508 U.S. 200, 208 [] (1993). Accordingly, the
text of the two subsections of § 230(c) indicates that (c)(1)’s
immunity applies regardless of whether the publisher acts in
good faith.
24
Levitt v. Yelp! Inc., 2011 WL 5079526, at *7 (N.D. Cal. Oct. 26, 2011), aff’d,
765 F.3d 1123 (9th Cir. 2014).10
Unfair and Deceptive Business Practices
The Doe plaintiffs contend that the claim for unfair and deceptive
business practices under the Massachusetts Consumer Protection Act, Gen.
Laws ch. 93, § 9, survives section 230 immunity because it does not depend
on the content of the advertisements themselves, but rather on the
“deceptive” design of Backpage. Without the offending ads, however, no
nexus would exist between Backpage and the harms suffered by the Doe
plaintiffs. Their theory – that absent the permissive website design and
imperfect filtering, their pimps would not have trafficked them or, if they had
attempted to do so, law enforcement would have scrutinized Backpage more
closely and would possibly have intervened to prevent their injuries – is too
speculative to fall as a matter of law within the penumbra of reasonably
foreseeability.
Moreover, courts have repeatedly rejected this “entire website” theory
as inconsistent with the substance and policy of section 230. In Universal
Because the CDA immunizes Backpage from private litigants seeking
redress under civil law, the parallel state law claim under the MATA is
necessarily inconsistent with, and therefore preempted by, the CDA.
25
10
Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007), the First
Circuit refused to hold Lycos (a search engine) liable for the “construct and
operation” of its website.
Id. at 422.
“Lycos’s decision not to reduce
misinformation by changing its web site policies was as much an editorial
decision with respect to that misinformation as a decision not to delete a
particular posting. Section 230 immunity does not depend on the form that
decision takes.” Id.; see also StubHub, Inc., 219 N.C. App. at 245 (rejecting
the “entire website” approach in determining whether the Internet ticket
marketplace may be held responsible for scalpers’ unfair or deceptive trade
practices); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 257 (4th Cir. 2009) (finding a “structure and design” approach
inapplicable where, unlike in Roommates, the design of website did not
“require[] users to input illegal content as a necessary condition of use.”).11
Also problematic is the suggestion that either knowledge or tacit
encouragement of illegal content (but not the content itself) can be the basis
Court have also rejected consumer protection claims under section
230(c)(1) that seek to hold interactive service providers liable for third-party
content. See, e.g., Lycos, 478 F.3d at 421-422 (Florida securities and
cyberstalking laws); Hinton v. Amazon.com, 2014 WL 6982628, at *1 (S.D.
Miss. Dec. 9, 2014) (Mississippi Consumer Protection Act); Obado, 2014 WL
3778261, at *1 (New Jersey Consumer Fraud Act); Goddard v. Google, 2008
WL 5245490, at *1 (N.D. Cal. Dec. 17, 2008) (California Unfair Competition
Law).
26
11
for interactive web services liability. “It is, by now, well established that
notice of the unlawful nature of the information provided is not enough to
make it the service provider’s own speech.” Lycos, 478 F.3d at 420; see also
Zeran v. Am. Online, Inc., 129 F.3d 327, 332 (4th Cir. 1997) (“The simple fact
of notice surely cannot transform one from an original publisher to a
distributor in the eyes of the law.”). Moreover,
there is simply no authority for the proposition that [encouraging
the publication of defamatory content] makes the website
operator responsible, in whole or in part, for the ‘creation or
development’ of every post on the site. . . . Unless Congress
amends the [CDA], it is legally (although perhaps not ethically)
beside the point whether defendants refuse to remove the
material, or how they might use it to their advantage.
Ascentive, LLC v. Opinion Corp., 842 F. Supp. 2d 450, 476 (E.D.N.Y. 2011)
(internal quotation marks omitted, ellipsis in original). Indeed,
an encouragement test would inflate the meaning of
“development” to the point of eclipsing the immunity from
publisher-liability that Congress established. Many websites not
only allow but also actively invite and encourage users to post
particular types of content. Some of this content will be
unwelcome to others – e.g., unfavorable reviews of consumer
products and services, allegations of price gouging, complaints of
fraud on consumers, reports of bed bugs, collections of ceaseand-desist notices relating to online speech. And much of this
content is commented upon by the website operators who make
the forum available. Indeed, much of it is “adopted” by website
operators, gathered into reports, and republished online. Under
an encouragement test of development, these websites would
lose the immunity under the CDA and be subject to hecklers’
suits aimed at the publisher. Moreover, under the district court’s
27
rule, courts would then have to decide what constitutes
“encouragement” in order to determine immunity under the
CDA – a concept that is certainly more difficult to define and
apply than the Ninth Circuit’s material contribution test. See
Zeran, 129 F.3d at 333. Congress envisioned an uninhibited,
robust, and wide-open internet, see § 230(a)(1)-(5), but the
muddiness of an encouragement rule would cloud that vision.
Accordingly, other courts have declined to hold that websites
were not entitled to the immunity furnished by the CDA because
they selected and edited content for display, thereby encouraging
the posting of similar content.
Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 414-415 (6th
Cir. 2014).12
Right of Publicity
Mass. Gen. Laws ch. 214, § 3A, provides that
[a]ny person whose name, portrait or picture is used within the
commonwealth for advertising purposes or for the purposes of
trade without his written consent may bring a civil action in the
superior court against the person so using his name, portrait or
picture, to prevent and restrain the use thereof; and may recover
damages for any injuries sustained by reason of such use.
R.I. Gen. Laws § 9-1-28 provides in almost identical language that
[a]ny person whose name, portrait, or picture is used within the
state for commercial purposes without his or her written consent
Defendants also argue that the Chapter 93A claim, in so far as it is
based on alleged misrepresentations to law enforcement and social services
agencies, lacks an essential foundational element because law enforcement
and social services agencies have no connection in a commercial context to
defendants as “consumers” of goods and services.
12
28
may bring an action in the superior court against the person so
using his or her name, portrait, or picture to prevent and restrain
the use thereof, and may recover damages for any injuries
sustained by reason of such use.
Accepting, dubitante, the Doe plaintiffs’ assertion that the right to publicity
constitutes an intellectual property claim exempt from immunity under
section 230,13 the court agrees with defendants that plaintiffs have not pled
Although certain publicity rights are akin to “intellectual property”
rights, a person’s image is not a “product of the human intellect.” Black’s
Law Dictionary (10th ed. 2014). “[T]he right of publicity flows from the right
to privacy,” Alvarez Guedes v. Marcano Martinez, 131 F. Supp. 2d 272, 278
(D.P.R. 2001) (citing numerous cases), which is an intangible right of a
different nature. Despite the Doe plaintiffs’ attorney’s contention at oral
argument that a photograph may be copyrightable, it does not follow that the
underlying image is ipso facto protectable under intellectual property law.
See Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1264
(10th Cir. 2008) (“Recognizing that Oscar Wilde’s inimitable visage does not
belong, or ‘owe its origins’ to any photographer, the Supreme Court noted
that photographs may well sometimes lack originality and are thus not per
se copyrightable. . . . [P]hotographs are copyrightable, if only to the extent of
their original depiction of the subject. Wilde’s image is not copyrightable;
but to the extent a photograph reflects the photographer’s decisions
regarding pose, positioning, background, lighting, shading, and the like,
those elements can be said to ‘owe their origins’ to the photographer, making
the photograph copyrightable, at least to that extent.”), citing Burrow-Giles
Lithographic Co. v. Sarony, 111 U.S. 53, 59 (1884). Courts also disagree as
to whether state law intellectual property claims are exempted under section
230. Compare Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir.
2007) (“In the absence of a definition from Congress, we construe the term
“intellectual property” to mean ‘federal intellectual property.’”) with Doe v.
Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302 (D.N.H. 2008)
29
13
plausible claims for unauthorized use of their images. Plaintiffs do not allege
that defendants used their images to extract any direct benefit (such as
featuring plaintiffs on advertisements for Backpage). Rather, the allegation
is that defendants benefitted incidentally from the fee charged for posting
advertisements with the Doe plaintiffs’ pictures in the escorts section of the
website.
The argument, however, has been explicitly rejected by the
Massachusetts Supreme Judicial Court.14
[T]the crucial distinction under G.L. c. 214, s 3A, must be
between situations in which the defendant makes an incidental
use of the plaintiff’s name, portrait or picture and those in which
the defendant uses the plaintiff’s name, portrait or picture
deliberately to exploit its value for advertising or trade purposes.
Tropeano v. Atl. Monthly Co., 379 Mass. 745, 749 (1980). “‘The fact that the
defendant is engaged in the business of publication, for example of a
newspaper, out of which he makes or seeks to make a profit, is not enough to
make the incidental publication a commercial use of the name or likeness.’”
(“[Section] 230(e)(2) applies simply to ‘any law pertaining to intellectual
property,’ not just federal law.”).
“[A]s a federal court considering state law claims, we must apply the
state’s law on substantive issues and ‘we are bound by the teachings of the
state’s highest court.’” Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85,
88 (1st Cir. 2007), citing N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35,
37-38 (1st Cir. 2001).
14
30
Id., quoting Nelson v. Maine Times, 373 A.2d 1221, 1224 (Me. 1977) (in turn
quoting Restatement (Second) of Torts § 652C, cmt. d (1977)); see also
Intercity Maint. Co. v. Local 254 Serv. Employees Int’l Union, 62 F. Supp.
2d 483, 506 (D.R.I. 1999), aff’d in part, vacated in part on other grounds,
remanded sub nom. Intercity Maint. Co. v. Local 254, Serv. Employees Int’l
Union AFL-CIO, 241 F.3d 82 (1st Cir. 2001) (“The Rhode Island legislature
borrowed the Privacy Act’s scheme of four privacy torts, including the tort of
false light, from the doctrine of privacy torts promulgated by the
Restatement (Second) of Torts. See Liu v. Striuli, 36 F. Supp. 2d 452, 479
(D.R.I. 1999); Restatement (Second) of Torts §§ 652B-E (establishing the
four privacy torts). Accordingly, Rhode Island courts have often turned to
the Restatement as an authority on the matter of privacy torts.”).
Copyright Infringement
Jane Doe No. 3 obtained a registration for her photograph on
December 18, 2014, after this lawsuit was filed. Although registration is not
a jurisdictional prerequisite of bringing a suit for copyright infringement,
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010), it is a “condition
precedent for obtaining certain remedies, such as statutory damages and
attorneys’ fees.” Johnson v. Gordon, 409 F.3d 12, 20 (1st Cir. 2005); see also
17 U.S.C § 412 (“[N]o award of statutory damages or of attorney’s fees . . .
31
shall be made for – (1) any infringement of copyright in an unpublished work
commenced before the effective date of its registration.”).
The only recovery remaining open to Jane Doe No. 3 is compensatory
damages under 17 U.S.C. § 504. Section 504 permits recovery of “the actual
damages suffered by [] her as a result of the infringement, and any profits of
the infringer that are attributable to the infringement and are not taken into
account in computing the actual damages.” With respect to the latter, Jane
Doe No. 3 alleges that “[t]he Backpage Defendants derive a financial benefit
directly attributable to the public display of such photographs by virtue of
the payment of fees by the pimps and traffickers to Backpage.com.” SAC ¶
139.
However, she may only recover profits from defendants that are
causally linked to specific acts of infringement. See On Davis v. The Gap,
Inc., 246 F.3d 152, 159-161 (2d Cir. 2001). Here no plausible link exists
between defendants’ generalized profits and any common-law copyright
vesting in Jane Doe No. 3’s photo for the simple reason that the fee for
posting an ad is the same whether or not it includes a photograph. Jane Doe
No. 3 does not allege that she suffered any loss of revenues or licensing fees
for her photo as a result of the infringement (nor does she allege that the
protectable elements of the photo, see n.12 supra, have any market value).
32
Because she does not plead any redressable damages, Jane Doe No. 3’s
copyright infringement claim must also be dismissed.
***
To avoid any misunderstanding, let me make it clear that the court is
not unsympathetic to the tragic plight described by Jane Doe No. 1, Jane Doe
No. 2, and Jane Doe No. 3. Nor does it regard the sexual trafficking of
children as anything other than an abhorrent evil. Finally, the court is not
naïve – I am fully aware that sex traffickers and other purveyors of illegal
wares ranging from drugs to pornography exploit the vulnerabilities of the
Internet as a marketing tool. Whether one agrees with its stated policy or
not (a policy driven not simply by economic concerns, but also by
technological and constitutional considerations), Congress has made the
determination that the balance between suppression of trafficking and
freedom of expression should be struck in favor of the latter in so far as the
Internet is concerned. Putting aside the moral judgment that one might pass
on Backpage’s business practices, this court has no choice but to adhere to
the law that Congress has seen fit to enact.
33
ORDER
For the foregoing reasons, defendants’ motion to dismiss the Second
Amended Complaint is ALLOWED. The Clerk is directed to enter judgment
accordingly and close this case.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE
34
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