In re Facebook, Inc.

In re Facebook, Inc.

Opinion

 [*82]  On Petition for Writ of Mandamus

Facebook seeks writs of mandamus directing the dismissal of three lawsuits pending against it in district court. The  [*83]  plaintiffs in all three cases allege they were victims of sex trafficking who became entangled with their abusers through Facebook. They assert claims for negligence, negligent undertaking, gross negligence, and products liability based on Facebook's alleged failure to warn of, or take adequate measures to prevent, sex trafficking on its internet platforms. They also assert claims under a Texas statute creating a civil cause of action against those who intentionally or knowingly benefit from participation in a sex-trafficking venture. See Tex. Civ. Prac. & Rem. Code § 98.002.

In all three lawsuits, Facebook moved to dismiss all claims against it as barred by section 230 of the federal "Communications Decency Act" ("CDA"), which provides that [**4]  "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(e)(3). Facebook contends that all the plaintiffs' claims are "inconsistent with" section 230(c)(1), which says 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."

For the reasons explained below, we deny mandamus relief in part and grant it in part. The plaintiffs' statutory human-trafficking claims may proceed, but their common-law claims for negligence, gross negligence, negligent undertaking, and products liability must be dismissed.

We do not understand section 230 to "create a lawless no-man's-land on the Internet" in which states are powerless to impose liability on websites that knowingly or intentionally participate in the evil of online human trafficking. Fair Hous. Council v. Roommates.Com, LLC, 521 F.3d 1157, 1164 (9th Cir. 2008) (en banc). Holding internet platforms accountable for the words or actions of their users is one thing, and the federal precedent uniformly dictates that section 230 does not allow it. Holding internet platforms accountable for their own misdeeds is quite another thing. This is particularly the case for human [**5]  trafficking. Congress recently amended section 230 to indicate that civil liability may be imposed on websites that violate state and federal human-trafficking laws. See Allow States and Victims to Fight Online Sex Trafficking Act ("FOSTA"), Pub. L. No. 115-164, 132 Stat. 1253 (2018). Section 230, as amended, does not withdraw from the states the authority to protect their citizens from internet companies whose own actions—as opposed to those of their users—amount to knowing or intentional participation in human trafficking.

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