United States District Court, D. Massachusetts
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
BACKPAGE.COM, LLC, CAMARILLO HOLDINGS, LLC (f/k/a VILLAGE VOICE MEDIA HOLDINGS, LLC), and NEW TIMES MEDIA, LLC
For Jane Doe (1), Jane Doe (2), Plaintiffs: Ching-Lee Fukuda, LEAD ATTORNEY, Ropes & Gray LLP, New York, NY; John T. Montgomery, LEAD ATTORNEY, Jessica L. Soto, Ropes & Gray - MA, Prudential Tower, Boston, MA; Aaron M. Katz, Christine Ezzell Singer, Dara A. Reppucci, Ropes & Gray LLP - MA, Prudential Tower, Boston, MA.
For Mary Roe, Plaintiff: John T. Montgomery, LEAD ATTORNEY, Jessica L. Soto, Ropes & Gray - MA, Prudential Tower, Boston, MA; Aaron M. Katz, Christine Ezzell Singer, Dara A. Reppucci, Ropes & Gray LLP - MA, Prudential Tower, Boston, MA.
For Jane Doe (3), Plaintiff: Ching-Lee Fukuda, LEAD ATTORNEY, Ropes & Gray LLP, New York, NY; John T. Montgomery, LEAD ATTORNEY, Jessica L. Soto, Ropes & Gray - MA, Prudential Tower, Boston, MA; Christine Ezzell Singer, Ropes & Gray LLP - MA, Prudential Tower, Boston, MA.
For Sam Loe, Sara Loe, Plaintiffs: John T. Montgomery, LEAD ATTORNEY, Ropes & Gray - MA, Boston, MA.
For Backpage.com, LLC, Defendant: Ambika K. Doran, James C. Grant, LEAD ATTORNEYS, PRO HAC VICE, Davis Wright Tremaine LLP, Seattle, WA; Robert A. Bertsche, LEAD ATTORNEY, Prince Lobel Tye LLP, Boston, MA; Jeffrey Jackson Pyle, Prince Lobel & Tye LLP, Boston, MA.
For Camarillo Holdings, LLC, formerly known as Village Voice Media Holding, LLC, New Times Media, LLC, Defendants: Robert A. Bertsche, LEAD ATTORNEY, Prince Lobel Tye LLP, Boston, MA; Jeffrey Jackson Pyle, Prince Lobel & Tye LLP, Boston, MA.
For Commonwealth of Massachusetts Office of the Attorney General, Amicus: Genevieve C. Nadeau, LEAD ATTORNEY, Office of the Attorney General Martha Coakley, Boston, MA.
For City and County of San Francisco, Amicus: Mark D. Lipton, Office of the City Attorney, San Francisco, CA.
For Electronic Frontier Foundation, Center for Democracy & Technology, Eric Goldman, Amicuses: Christopher Cody Walsh, LEAD ATTORNEY, Electronic Frontier Foundation, San Francisco, CA.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
Richard G. Stearns, UNITED STATES DISTRICT JUDGE.
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.
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:
● 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 " 201-345-6789" ). 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 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 " faç ade 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 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 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, including one that she had taken of herself, appeared with the ads on Backpage.
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 curiae filed helpful briefs. The court heard oral argument on April 15, 2015.
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 A. Corp. v. Twombly, 550 U.S. 544, 557, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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 . . . under any State or local law that is inconsistent with this section." Id. § 230(e)(3). 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 ...