If you don't remember, the momentum around FOSTA/SESTA was that it was going nowhere, until suddenly Facebook did an about face and abruptly (and strongly) supported the bill, leading Congress to incorrectly believe that the tech industry now supported the bill. Facebook's Sheryl Sandberg, who became the public face of supporting the bill, insisted that there were no problems with the bill, that it wouldn't create any real problems for internet companies, and that it would be useful in the fight against sex trafficking.
At the time, we pointed out that under the broad definitions in the law, it certainly appeared that Facebook was potentially violating the bill in multiple ways. Even if it turned out that courts rule that the vague language of FOSTA should be construed much more narrowly, the damage is already done, as some companies will have to battle the issue out in court.
And... perhaps not surprisingly... one of the first such cases has been brought against Facebook itself along with Backpage, Backpage's execs and some local motels (hat tip to Eric Goldman). As you can see, it's a "Jane Doe" lawsuit filed against Facebook in Harris County, Texas, and the core of the lawsuit is basically tying Facebook to Backpage:
Social Media companies, websites, and the hotel industry should never place their quest for profits above the public good. Human trafficking has hit epidemic proportions in our communities, and it has had a devastating effect on the victims and a crushing financial effect on our world. Driven by profit, social media giants like Facebook and sex brokers like Backpage have treated children as a commodity.
The participants in this venture of abuse share a value--profit. And the bottom line comes before all else--including the safety of children in our community. Facebook's profic (sic) metric is "connections." Backpage charged fees to broker sex. And hotels, like the one in this lawsuit, look the other way while children, like Jane Doe, are abused, exploited, and made available for sex acts to multiple perpetrators.
While pimps and sex buyers are sometimes criminally prosecuted, the social media companies, hotel industry, and Backpage have been able to escape taking responsibility for the harms and losses they cause these victims and our community. For years, businesses have been providing predators unrestricted means to prey on victims. Not anymore.
The specific issue relating to Facebook is that the plaintiff "Jane Doe" was recruited from Facebook, and that makes it vicariously liable under FOSTA.
The use of Facebook and the Backpage website for the advertising and recruitment of minors for sex was so pervasive and known to Facebook and the Backpage Defendants that it cannot be said such conduct was so unforeseen as to prevent Facebook and the Backpage Defendants from being liable for such conduct. Rather, Facebook and the Backpage Defendants knowingly aided and assisted sex traffickers, including the sex trafficker who recruited Jane Doe from Facebook and posted the advertisements of Jane Doe on the Backpage website. Facebook and the Backpage Defendants knowingly benefited from this illegal and immoral activity.
In a section about the "allegations regarding Facebook" the complaint makes Facebook out as if it were just as bad as Backpage. Here's just a snippet:
With each passing day, the gateway to our community's children is increasingly social media--and Facebook in particular.
People, including children, connecting with their friends, family, and communities are not the only ones passing through Facebook's gateway.
For years now, Facebook has permitted sex traffickers unfiltered access to the most vulnerable members of our society.
It has continually been used to facilitate human trafficking by allowing sex traffickers an unrestricted platform to stalk, exploit, recruit, groom, recruit, and extort children into the sex trade.
And, yes, it says "recruit" twice in there. This is, of course, hogwash. Facebook connects people, but it gives those users a tremendous amount of control over who is able to contact them -- meaning it is hardly "unrestricted." Either way, because of actions of someone else on Facebook, Facebook should be held liable according to this lawsuit:
The Facebook Friend said Jane Doe could make enough money to pay the rent on her own apartment. The Facebook fried offered to pick her up and console her about her disagreement with her mother.
Within hours of meeting the Facebook Friend, photos were taken of Jane Doe and were posted on Backpage, and then was raped, beaten, and forced into further sex trafficking.
Jane Doe had never been made aware of the dangers of sex traffickers on Facebook.
Jane Doe had never been made aware of the warning signs of sex traffickers on Facebook.
During the whole time that Jane Doe's Facebook Friend used Facebook, Facebook took no steps to verify his identity.
To date, Facebook has taken no reasonable steps to mitigate the use of Facebook by sex traffickers or exploiters using its platform.
Millions of minors like Jane Doe remain at risk every day when they simply log onto Facebook.
So... given those details, it certainly seems like there's an obvious criminal case to be brought against this "Facebook friend." Shouldn't that be the focus? Also, there are lots of places to learn how to be safe online. Why is it Facebook's fault that this individual didn't learn the basics of internet safety? The story is sad, obviously, but blaming Facebook for it is ridiculous. But thanks to Facebook's own support of FOSTA, it's at least now possible. In the causes of action, Doe claims that Facebook had a duty to "warn of the dangers of grooming" and failing to do that makes it liable. That seems like a stretch, but again, thanks to FOSTA it's not an open and shut case like it would have been earlier.
Remember, back when some of us pointed out that under FOSTA almost any website might face crushing liability? But supporters of the bill insisted that was a ridiculous read on the bill, because it would only apply to "bad actors" who "knowingly facilitated sex trafficking." We kept being told that this would never apply to sites like Facebook, and even had people tell us that Facebook's own support of the bill somehow "proved" that the law would never be used against Facebook.
And, yet, here we are with Facebook in court, with a victim of sex trafficking claiming that Facebook is liable.
Facebook may get the case tossed -- and hopefully that is the end result -- but it has already created a legal headache for the company, just as many of us predicted back when the bill was being debated. Also, I can't wait for all of those who insisted that FOSTA would never be used against sites like Facebook to either (a) refuse to comment on this or (b) now insist that Facebook was, indeed, a "bad actor" despite denying it during the debate over FOSTA and SESTA.