Case: 1:20-cv-02335 Document #: 105 Filed: 05/16/22 Page 1 of 35 PageID #:1218
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`G.G. (a minor), et al.,
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`Plaintiffs,
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`v.
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`SALESFORCE.COM, INC.,
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`No. 20-cv-02335
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`Judge Andrea R. Wood
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`When G.G. was thirteen years old, she ran away from home and fell into the hands of a
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`sex trafficker. The trafficker posted advertisements for sex with G.G. on the classified ad website
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`run by Backpage.com (“Backpage”).1 As alleged in the complaint, Backpage did not just allow
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`but encouraged these types of illegal ads, to the point of becoming a dominant force in online sex
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`trafficking. Beginning in 2013, Backpage contracted with Defendant Salesforce.com, Inc.
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`(“Salesforce”) to provide it with customer relationship management (“CRM”) business software
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`and support. That relationship allegedly helped grow Backpage’s operations, including promoting
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`the business of sex traffickers. G.G. and her mother, Deanna Rose, (together, “Plaintiffs”) have
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`now sued Salesforce pursuant to 18 U.S.C. § 1595, alleging that, through its contracts with
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`Backpage, Salesforce violated the federal anti-trafficking laws by knowingly benefiting from and
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`participating in a venture that it knew, or should have known, was engaged in illegal sex
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`trafficking. Salesforce has filed a motion to dismiss the complaint in its entirety pursuant to
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`1 The Third Amended Complaint, which is the operative complaint, includes Backpage as a defendant.
`Before Backpage answered the Third Amended Complaint, however, the Court granted Plaintiffs’ motion
`voluntarily to dismiss Backpage from this suit. (Dkt. No. 101.)
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`Case: 1:20-cv-02335 Document #: 105 Filed: 05/16/22 Page 2 of 35 PageID #:1219
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`Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 63.) For the reasons given below, the Court
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`grants the motion.
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`BACKGROUND
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`For purposes of Salesforce’s motion to dismiss, the Court accepts as true all well-pleaded
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`facts in the Third Amended Complaint (“TAC”) and views those facts in the light most favorable
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`to Plaintiffs as the non-moving parties. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614,
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`618 (7th Cir. 2007). The TAC alleges as follows.
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`Backpage was established in 2004 as an online marketplace for various goods and
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`services. (TAC ¶ 16, Dkt. No. 62.) Among other things, Backpage allowed classified ads for sex.
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`(Id.) In 2008, Backpage’s primary competitor, Craigslist, made it harder for users to post ads for
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`sex on its platform. Capitalizing on the displaced ad volume, Backpage entered into a period of
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`explosive growth, soon becoming the most popular online classified site for adult advertisements
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`and deriving the vast majority (up to 99%) of its revenue from such ads. (Id. ¶¶ 16, 23–24.)
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`Salesforce is the world’s top CRM platform, selling software to help companies manage
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`their relationships with customers, improve profitability, and streamline processes. (Id. ¶¶ 29–30.)
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`Specifically, Salesforce sells “software as a service” (“SaaS”) technology consisting of a set of
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`applications that, among other things, can help businesses manage sales and marketing functions,
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`assist with customer service and support, provide customer data integration and support, permit
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`both internal communications and communications with customers, offer business intelligence
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`analytics, and process other forms of data. (Id. ¶ 31.) The Salesforce platform also has a
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`“customer org”—that is, a portal that serves as a point of interaction between Salesforce and its
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`customers. (Id. ¶ 32.) The customer org is confidential to each Salesforce customer and consists of
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`that customer’s users, data, and automation. (Id.) Additionally, to help its customers achieve their
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`business goals, Salesforce also provides personalized support. (Id. ¶ 33.)
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`As Backpage grew, it required more support and better CRM tools and capabilities to keep
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`up with customer demand and scale its platform. (Id. ¶ 35.) To meet this need, Backpage
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`contracted with Salesforce in 2013. (Id. ¶ 37.) As set forth in the Master Service Agreements
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`between Salesforce and Backpage, Salesforce retained the right to delete or restrict access to
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`Backpage’s customer org if Backpage’s actions or content was tortious. (Id. ¶ 47.) During their
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`negotiations in November 2013, Backpage’s Chief Executive Officer (“CEO”) Carl Ferrer and
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`another high-level executive met with a certified Salesforce Consulting Partner to assess
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`Backpage’s needs and goals as a business and to determine how Salesforce could help. (Id. ¶ 53.)
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`An in-house Salesforce account executive continued those conversations, which eventually
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`culminated in a deal between the companies. (Id. ¶ 54.) Over the next five years, Salesforce sold
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`Backpage access to several products, including the premium “Enterprise Edition” of its CRM
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`software. (Id.) An in-house Salesforce executive recommended the Enterprise Edition, which is
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`described as “fully customizable.” (Id. ¶ 45.) And, in 2015, Salesforce provided the technological
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`infrastructure for Backpage to move its business overseas, allegedly to help it evade law
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`enforcement scrutiny in the United States. (Id. ¶ 46.) Overall, Backpage purchased a new
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`application, requested support, or renewed a contract with Salesforce on at least five occasions.
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`(Id. ¶ 48.) Each of those times, Backpage consulted with Salesforce about how best to assess and
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`meet its operational needs. (Id.)
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`Using the sophisticated CRM tools, as well as platform support, provided by Salesforce,
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`Backpage was able to scale its operations and expand its business. (Id. ¶¶ 39–42.) The nature of
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`those operations—and Salesforce’s knowledge of them—are at the center of the present lawsuit.
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`Plaintiffs allege that Backpage was primarily (or even solely) a sex-trafficking business. As early
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`as 2008, Backpage had been publicly identified by law enforcement and state and federal officials
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`as being associated with sex trafficking. (Id. ¶ 18.) And over the next decade, Backpage faced
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`calls to remove its adult services section by, among others, a group of state attorneys general.
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`Backpage refused, resisting efforts to shut down its site on First Amendment grounds. (Id. ¶ 21.)
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`Yet, even in the midst of persistent controversy and allegations regarding sex trafficking on
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`Backpage, Salesforce continued to provide software and support to Backpage throughout this
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`period. (Id. ¶ 50.)
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`Eventually, Backpage and its corporate leadership faced federal criminal charges. (Id.
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`¶¶ 25–26.) Backpage’s CEO pleaded guilty to charges that he conspired to facilitate prostitution
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`using a facility in interstate or foreign commerce and engaged in money laundering, while the
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`corporation pleaded guilty to conspiring to engage in money laundering. (Id. ¶¶ 25 n.17, 26 n.18;
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`see also Plea Agreement, United States v. Ferrer, No. 2:18-cr-00464-DJH (D. Ariz. Apr. 5,
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`2018); Plea Agreement, United States v. Backpage, No. 2:18-cr-00465-DJH (D. Ariz. Apr. 5,
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`2018.) As part of its plea agreement with the government, Backpage admitted to having operated
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`as a site for the sale of illegal sex and to receiving benefits from the sex trafficking of minors. (Id.
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`¶¶ 26–27.)
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`G.G. was one of those sex-trafficking victims. In 2016, when she was thirteen years old,
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`G.G. ran away from home and was soon picked up by her trafficker. (Id. ¶¶ 74, 76.) While
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`searching for her daughter, Rose found an ad featuring G.G. on Backpage’s Escort Page. (Id.)
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`Rose notified Backpage that G.G., a child, was being advertised for sex on their website and
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`requested that the ads be taken down. (Id.) Backpage, however, did not remove the ads and
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`instead merely referred Rose to the National Center for Missing and Exploited Children. (Id.)
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`Although G.G. is no longer under the control of her trafficker, she suffered significant physical
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`and emotional injuries as a result of her tragic ordeal and still suffers from the effects of being
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`trafficked at such a young age. (Id. ¶ 79.)
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`DISCUSSION
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`To survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual allegations
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`to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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`(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating a motion to dismiss,
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`the Court accepts as true all well-pleaded facts and draws all reasonable inferences from those
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`facts in the plaintiff’s favor. Bell v. City of Country Club Hills, 841 F.3d 713, 716 (7th Cir. 2016).
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`While a complaint need not contain detailed factual allegations, there “must be enough to raise a
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`right to relief above the speculative level.” Twombly, 550 U.S. at 545.“A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678.
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`Federal law provides for both criminal sanctions against sex traffickers and civil remedies
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`for victims of sex trafficking. Relevant to this case, 18 U.S.C. § 1591 creates both primary and
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`secondary liability for the sex trafficking of minors, and 18 U.S.C. § 1595 allows any victim of
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`such trafficking to sue for damages. Specifically, § 1595 allows victims of sex trafficking
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`violations under § 1591 to “bring a civil action against the perpetrator (or whoever knowingly
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`benefits, financially or by receiving anything of value from participation in a venture which that
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`person knew or should have known has engaged in an act in violation of [§ 1591].” 18 U.S.C.
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`§ 1595(a). Beyond the requirement that there be an underlying violation of § 1591, a plaintiff
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`seeking to impose liability under § 1595 must establish that the defendant (1) knowingly benefited
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`from (2) participating in a venture that (3) the person knew or should have known violated
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`§ 1591. See M.A. v. Wyndham Hotels & Resorts, Inc., 425 F. Supp. 3d 959, 969 (S.D. Oh. 2019).
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`Here, Plaintiffs seek to hold Salesforce liable under § 1591 for the trafficking of G.G. by
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`her trafficker as facilitated by Backpage. Specifically, Plaintiffs allege that a sex trafficker used
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`ads on Backpage to traffic G.G., a minor, in violation of § 1591. Plaintiffs further allege that
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`Backpage facilitated and assisted the use of its site by sex traffickers such as the one who
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`trafficked G,G., and that Salesforce, in turn, helped Backpage expand its business with those sex
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`traffickers. Salesforce asks this Court to dismiss Plaintiffs’ complaint against it for two reasons:
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`first, Salesforce contends that Plaintiffs’ claims are barred by the affirmative defense to liability
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`under § 1595 provided by § 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230;
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`and second, Salesforce argues that Plaintiffs have failed to state an actionable claim under 18
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`U.S.C. § 1595. As the defense under § 230, if applicable, is determinative and would warrant
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`dismissal with prejudice, the Court begins its analysis there.
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`I.
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`Section 230
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`Section 230 acts as a bar against liability for certain types of claims against certain
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`defendants—specifically, it provides that “[n]o provider or user of an interactive computer service
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`shall be treated as the publisher or speaker of any information provided by another information
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`content provider.” 47 U.S.C. § 230(c)(1). Thus, so long as a defendant can establish that it is (1) a
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`provider or user of an interactive computer service and (2) the claims against it seek to treat it as a
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`publisher of a third party’s content, § 230 will bar those claims. See Chi. Lawyers’ Comm. for Civ.
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`Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008) (explaining that
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`“[w]hat § 230(c)(1) says is that an online information system must not ‘be treated as the publisher
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`or speaker of any information provided by’ someone else” for purposes of establishing liability).
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`Specifically in the context of sex trafficking claims, including under § 1595, courts have found
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`that § 230 precludes liability where the allegations are predicated on the posting of user content—
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`that is, the advertisements trafficking the plaintiffs. See, e.g., M.A. ex rel. P.K. v. Vill. Voice
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`Media Hldgs, LLC, 809 F. Supp. 2d. 1041, 1052, 1056 (holding that § 230 barred claims against
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`Backpage because there was “no allegation that Backpage was responsible for the development of
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`any portion of the content of the [sex trafficker’s] posted ads or specifically encouraged the
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`development of the offensive nature of that content.”). Section 230’s protection against such
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`claims, however, is not absolute—as relevant here, Congress amended § 230 through the Allow
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`States and Victims to Fight Online Sex Trafficking Act (“FOSTA”) to explicitly exempt certain
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`kinds of sex trafficking claims. FOSTA, Pub. L. No. 115-164, 132 Stat. 1253 (2018). As a result,
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`§ 230(e)(5)(A) now clarifies that “nothing in this section . . . shall be construed to impair or limit
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`any claim in a civil action brought under [§ 1595], if the conduct underlying the claim constitutes
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`a violation of [§ 1591].”
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`Section 230 functions as an affirmative defense. See, Doe v. GTE Corp., 347 F.3d 655,
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`657 (7th Cir. 2003); Bonilla v. Ancestry.com Operations, Inc., No. 20-C-07390, 2021 WL
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`5795306, at *4 (N.D. Ill. 2021). Typically, the existence of a potential affirmative defense does
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`not “render the claim for relief invalid,” and “courts should usually refrain from granting Rule
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`12(b)(6) motions” on that basis. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690
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`(7th Cir. 2012). However, “[a]n exception applies when the allegations of the complaint set forth
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`everything necessary to satisfy the affirmative defense.” Hyson USA, Inc. v. Hyson 2U, Ltd., 821
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`F.3d 935, 939 (7th Cir. 2016) (internal quotation marks omitted). And courts often address the
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`question of § 230’s applicability on a motion to dismiss. See, e.g., Marshall’s Locksmith Serv. Inc.
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`v. Google, LLC, 925 F.3d 1263, 1267 (D.C. Cir. 2019) (affirming dismissal of a complaint on
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`§ 230 grounds and citing cases in which courts had acted similarly). As the D.C. Circuit explained
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`in Marshall’s Locksmith Service, Inc., invocation of § 230 immunity in a Rule 12(b)(6) motion is
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`“[c]onsistent with Congress’ intent to confer broad immunity for the re-publication of third-party
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`content.” Id.; see also Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th
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`Cir. 2009) (“Section 230 immunity, like other forms of immunity, is generally accorded effect at
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`the first logical point in the litigation process.”). Still, for a defendant to raise the defense at the
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`motion to dismiss stage successfully, “plaintiff[s] must affirmatively plead [themselves] out of
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`court.” Hyson USA, 821 F.3d at 939 (internal quotation marks omitted). Salesforce contends that
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`Plaintiffs here have done just that, arguing that the allegations of the TAC unambiguously
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`establish that § 230 precludes Plaintiffs’ claims against it and that no exception to § 230’s
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`protections apply.
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`A.
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`Salesforce as an Interactive Computer Service
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`First, Salesforce asserts that it qualifies for § 230’s protections because it is a provider of
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`an “interactive computer service.” Section 230 defines “interactive computer service” as “any
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`information service, system, or access software provider that provides or enables computer access
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`by multiple users to a computer server, including specifically a service or system that provides
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`access to the Internet.” 47 U.S.C. § 230(f)(2). Salesforce argues that it falls under the definition of
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`“access software provider,” which is defined as “a provider of software (including client or server
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`software) or enabling tools which do any one or more of the following: (a) filter, screen, allow, or
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`disallow content; (b) pick, choose, analyze, or digest content; or (c) transmit, receive, display,
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`forward, cache, search, subset, organize, reorganize, or translate content.” 47 U.S.C. § 230(f)(4).
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`Indeed, applying the plain language of the statutory definition to the allegations in the
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`TAC, Salesforce plainly qualifies as an “interactive computer service.” At oral argument on this
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`motion, Plaintiffs conceded that Salesforce is a software company, and the complaint alleges that
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`“Backpage paid the money that it earned from trafficking to Salesforce in exchange for the
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`Salesforce technology and support necessary for Backpage to operate and expand its business.”
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`(TAC ¶ 77.) Looking further into details of the complaint, the support Salesforce provided
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`Backpage involved the provision of technological capabilities—specifically, software that
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`allowed Backpage employees to analyze and digest customer data as well as applications
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`providing for the transmission of both internal employee communications and external customer
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`outreach and support.2 Plaintiffs’ claims can best be summarized thusly: “Salesforce provided
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`support to Backpage in the use of [Salesforce’s sophisticated software and related] technologies
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`and had knowledge of the manner in which Backpage operated with these enhanced capabilities.”
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`2 The following allegations are representative of how Plaintiffs’ claims against Salesforce are predicated
`upon capabilities provided by Salesforce’s software. Plaintiffs allege that Salesforce acted:
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`By “[p]roviding, assisting, supporting, and facilitating Backpage with capabilities and support for
`direct marketing campaigns, coupled with information gathering such as tracking clicks and
`tracking internet activity of the sex traffickers.” (TAC ¶ 87(c).)
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`By “[p]roviding, assisting, supporting, and facilitating more personalized outreach with
`automation using ‘dynamic content’ and automated messaging to target traffickers and sex
`buyers.” (Id. ¶ 87(d).)
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`By “[p]roviding, assisting, supporting, and facilitating account planning including customer
`follow up, account reminders, modification of marketing and sales plans, and cross-function
`customer service capabilities to improve outreach and services to traffickers.” (Id. ¶ 87(h).)
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`By “[p]roviding, assisting, supporting, and facilitating a custom Application Programming
`Interface (API) for use by Backpage employees, which is a software intermediary that allows two
`applications to talk to each other. This capability was for use by Backpage and did not enable
`computer access by the public or non-Backpage personnel.” (Id. ¶ 87(i).)
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`By “[p]roviding, assisting, supporting, and facilitating efficiency enhanced with automation, such
`as cutting the time it takes to email and nurture leads, scoring leads using customer parameters set
`by the customer using artificial intelligence (AI) and handling customer questions using
`automation such as chatbots.” (Id. ¶ 87(o).)
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`What all these allegations have in common is that they describe capabilities provided by Salesforce’s
`software and utilized by Backpage rather than actions taken by Salesforce itself.
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`(TAC ¶ 87(b).) Put differently, Salesforce, through its software, provided multiple users access to
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`a set of enabling tools that allow those users to analyze, organize, arrange, transmit, and display
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`content provided by a third-party (here, Backpage). This description, which aligns with the
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`statutory definition, unambiguously establishes that Salesforce is an “interactive computer
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`service.”
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`Nonetheless, Plaintiffs argue that Salesforce has not established that it is an interactive
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`computer service because it was not involved in the management of content posted to Backpage.
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`Instead, Plaintiffs contend, Salesforce only managed relationships between Backpage and its
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`customers—most of whom, Plaintiffs maintain, were sex traffickers. But managing those
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`relationships did require Salesforce to analyze content—content provided by Backpage about its
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`customers. (See, e.g., TAC ¶ 87(f) (alleging that Salesforce “provid[ed], assist[ed], support[ed],
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`and facilitat[ed] surveillance and analysis of customer and user activity with regard to access to
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`ads”).)
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`To avoid this result, Plaintiffs ask the Court to read an additional requirement into the
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`statutory definition of interactive service provider. Specifically, Plaintiffs appear to take the
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`position that § 230 only covers providers who host publicly accessible platforms. Salesforce’s
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`applications, of course, were only available internally to Backpage employees. But nothing in
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`either the statutory text or case law supports this view. It is true, as Plaintiffs note, that § 230 most
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`commonly has been applied to bar liability for defendants who host public platforms. See, e.g.,
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`Bennett v. Google, LLC, 882 F.3d 1163, 1167–68 (D.C. Cir. 2018) (applying § 230 to bar claims
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`against a public internet search engine); Klayman v. Zuckerberg, 753 F.3d 1354, 1356–58 (D.C.
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`Cir. 2014) (applying § 230 to bar claims against a social networking website). But the mere fact
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`that the defendants that have successfully involved § 230 to avoid liability have been publicly
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`accessible does not mean that such accessibility is a statutory requirement. See, e.g., Fields v.
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`Twitter, Inc., 217 F. Supp. 3d 1116, 1128 (N.D. Cal. 2016) (“[A] number of courts have applied
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`the CDA to bar claims predicated on a defendant’s transmission of nonpublic messages, and have
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`done so without questioning whether the CDA applies in such circumstances.” (citing cases)),
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`aff’d on other grounds, 881 F.3d 739 (9th Cir. 2018)).
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`Zango v. Kaspersky Lab, Inc., 568 F.3d 1169 (9th Cir. 2009), to which both Plaintiffs and
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`Salesforce cite, is instructive. In Zango, the plaintiff “propose[d] a gloss on ‘interactive computer
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`service’ that would construe a computer service as ‘interactive’ only if it enables people to access
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`the Internet or access content found on the Internet.” Id. at 1175. Based on that construction, the
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`defendant, which distributed malware software, would not fall under § 230’s definition. Id. at
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`1172. The Ninth Circuit, however, “decline[d] to read the statute so narrowly,” explaining that,
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`“[a]s written, § 230 does not limit the definition of ‘interactive computer service’ to services that
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`provide access to the Internet; rather, its singular requirement is for ‘access by multiple users to a
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`computer server.’” Id. at 1175–76 (quoting § 230(f)(2)). The Court finds this analysis persuasive.
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`After all, if an interactive computer service is defined as “including specifically a service or
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`system that provides access to the Internet,” it is not necessarily limited to such services. 47
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`U.S.C. § 230(f)(2). And in any event, as alleged, Salesforce does provide access to its applications
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`through the Internet. (See TAC ¶ 45 n.20 (citing to “Sales Cloud Pricing” when describing the
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`software edition used by Backpage).)
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`Still, Plaintiffs insist that because Salesforce was not involved in managing the content
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`underlying their claims—the ads posted on Backpage by G.G.’s sex trafficker—§ 230’s
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`protections cannot apply to Salesforce. According to Plaintiffs’ reading, § 230’s references to
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`“content” must be understood not as content generally but rather as the content underlying the
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`claim against the defendant. Using this logic, Backpage, as the actual host of the content in
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`question, would be considered a provider of interactive computer services, while Salesforce,
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`whose applications supported Backpage’s internal operations, would not. But the text of § 230
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`imposes no such requirement—an interactive computer service must simply permit users to
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`interact with content, without any reference to what content. Without a textual basis or supporting
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`case law, the Court declines to impose unilaterally a requirement that whether a defendant is an
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`“interactive computer service” under § 230 depends on the nature of the claims against it.
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`Plaintiffs further assert that, at the very least, it is too soon to decide the issue of whether
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`Salesforce qualifies as an interactive computer service. Plaintiffs contend that even if the Court is
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`unable to hold that Salesforce is not an interactive computer service as a matter of law, discovery
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`is still necessary to resolve the question of whether Salesforce in fact is one. But the allegations
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`of the complaint make clear that Salesforce’s technology allows users (Backpage employees) to
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`manipulate content in a variety of ways, including by analyzing and organizing customer data and
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`transmitting messages between Backpage and potential customers. When questioned during oral
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`argument about the benefits of allowing limited discovery on this issue, Plaintiffs suggested that it
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`could provide more insight into what Salesforce’s software was doing. Yet the Plaintiffs already
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`have provided a thorough overview of Salesforce’s technology in the TAC, suggesting that they
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`are already well-acquainted with the capabilities of the software. Similarly, the TAC contains
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`detailed factual allegations regarding discussions between Salesforce and Backpage executives,
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`including quotations from emails between Backpage and individuals associated with Salesforce.
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`Given the detailed allegations already contained within the complaint, as well as Plaintiffs
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`inability to specify how discovery would shift the analysis, the Court finds it possible to rule on
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`this issue without further inquiry.
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`Accordingly, for the reasons discussed above, the Court holds that, as a matter of law
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`based on the allegations of the TAC, Salesforce is an interactive computer service.
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`B.
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`Salesforce as a Publisher
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`Section 230 does not, however, provide a complete defense for any type of claim against
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`an interactive computer service. Craigslist, 519 F.3d at 669–70 (explaining that “§ 230(c) as a
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`whole cannot be understood as a general prohibition of civil liability for web-site operators and
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`other online content hosts,” and noting, as an example, that defendants may be liable for claims
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`like “contributory infringement if their system is designed to help people steal music”). But if
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`Salesforce can be liable only in a capacity as a publisher, then § 230 applies. Id.; see also City of
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`Chi. v. StubHub! Inc., 624 F.3d 363, 366 (7th Cir. 2010) (finding that a claim seeking a judgment
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`that a ticket reseller was responsible for collecting state taxes did not implicate § 230 because the
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`tax in question “[did] not depend on who ‘publishes’ any information or is a ‘speaker’”). Whether
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`a claim treats a defendant as the publisher of third-party content “does not depend on the form of
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`the asserted cause of action; rather, it depends on whether the cause of action necessarily requires
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`that the defendant be treated as the publisher or speaker of content provided by another.” Jane
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`Doe No. 1 v. Backpage.com LLC, 817 F.3d 12, 19 (1st Cir. 2016) (citing cases); see also Cohen v.
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`Facebook, Inc., 252 F. Supp. 3d 140, 156 (E.D.N.Y. 2017) (explaining that § 230 “is implicated
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`not only by claims that explicitly point to third party content but also by claims which, though
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`artfully pleaded to avoid direct reference, implicitly require recourse to that content to establish
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`liability or implicate a defendant’s role, broadly defined, in publishing or excluding third party
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`[c]ommunications”).
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`Here, Plaintiffs seek to hold Salesforce liable for harm caused to G.G. by her trafficking
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`via ads posted on Backpage. In Salesforce’s view, this is a straightforward example of a claim
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`treating a defendant as a publisher; after all, Plaintiffs are attempting to hold Salesforce
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`responsible for the harmful effects of third-party content posted online. For their part, Plaintiffs
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`argue that because Salesforce, even if it is an interactive computer service, did not make any
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`decisions regarding the editing, monitoring, or publishing of the harmful advertisements, it is not
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`being treated as a publisher. Plaintiffs suggest that Salesforce should have monitored Backpage’s
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`use of Salesforce’s tools and deleted or restricted access to its software in response to illegal
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`activity—in other words, that Salesforce acted as publisher regarding Backpage’s content on
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`Salesforce’s own applications. (See TAC ¶ 47.) And at least some of Plaintiffs’ claims relate to
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`Backpage’s use of Salesforce’s CRM software to engage in online marketing communications
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`with sex traffickers to expand Backpage’s customer base. (See TAC ¶¶ 87(c), (g), (h), (k).) But
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`those claims would also treat Salesforce as a publisher, as courts have consistently found that
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`§ 230 bars imposing liability on a provider of messaging or e-mail services for content and
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`activities conducted via those services. See Fields, 217 F. Supp. 3d at 1127–29.
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`Plaintiffs’ remaining allegations can be summed up thusly: Backpage, far from acting as a
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`neutral platform for advertisements, actively sought out sex traffickers. To do so, Backpage
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`worked with the sex traffickers to ensure that the advertisements, including those featuring G.G.,
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`were “sanitized” to hide their illegality. And Salesforce, even though it was aware that
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`Backpage’s business model was based on sex trafficking, provided tools and support for those
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`tools to help Backpage expand its customer base. But while Plaintiffs, perhaps recognizing that
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`the claims at their core rest upon the publication of an advertisement, repeatedly emphasize
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`Salesforce’s actions in their briefing, the TAC itself does not suggest that Salesforce ever took
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`any actions regarding the harmful advertisements or the sex traffickers. (See TAC ¶ 40
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`(“Salesforce provided personalized support for the technological tools and instruments that made
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`Case: 1:20-cv-02335 Document #: 105 Filed: 05/16/22 Page 15 of 35 PageID #:1232
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`it possible for Backpage to engage in the internet based on-line selling of sex, sex trafficking, and
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`compelled prostitution.”) (emphasis added).)3 Put simply, Plaintiffs seek to hold Salesforce liable
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`for the fact that Backpage used Salesforce software to cultivate sex traffickers as customers and
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`grow the website’s reach among sex traffickers, ultimately resulting in the posting of the
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`advertisement featuring G.G. This is a quintessential claim covered by § 230: it seeks to impose
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`liability on an interactive computer service for third-party content that was published on an online
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`platform.
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`The Court’s finding does not, as Plaintiffs suggest, abandon the statutory language of
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`§ 230 by asking not whether the claims treat Salesforce as the “publisher or speaker” of third-
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`party content but whether the third-party content is a “necessary part” of the facts. Plaintiffs rely
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`on Doe v. Internet Brands for the proposition that “the CDA does not provide a general immunity
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`against all claims derived from third-party content.” 824 F.3d 846, 853 (9th Cir. 2016). But
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`Internet Brands itself makes clear that applying § 230 to Plaintiffs’ claims does not contradict this
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`principle. In Internet Brands, the defendant was the operator of a networking website for models.
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`Id. at 848. Somehow, through an outside source, the defendant became aware of two men that
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`were using the site to pr