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Doe v Salesforce – the Unintended Consequences of SESTA-FOSTA

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Doe v Backpage is part of a string of unintended consequences we’ve seen since the passage of SESTA last year.  

The plaintiffs assert that because Salesforce’s tools were used by (as well as thousands of other sites), that Salesforce is directly liable for any harm caused by, a notorious site where sex-trafficking occurred, was shutdown by law enforcement in 2018 prior to the enactment of SESTA.

While this case does not specifically mention SESTA or the Communications Decency Act Section 230 (Section 230), it is clear that SESTA potentially mollified Salesforce’s ability to have the suit dismissed under Section 230.

Before the passage of SESTA, Salesforce would likely have seen this suit immediately dismissed as a violation of Section 230 – which holds the bad actors, not the platforms responsible for violations of state law.  But SESTA opened a hols in Section 230 allowing lawsuits like this one make the intermediary liable for abuses of their tools.

Moreover, SESTA has afforded a cottage-industry for plaintiff’s attorneys to grow and take action, not against bad actors, but instead deep-pocketed intermediaries like Salesforce.  Note that the lead attorney in Doe v Salesforce is also the lead attorney in Doe v Facebook — both suits brought post-SESTA enactment.

I worry that these lawsuits are just the beginning of what is going to be a gold-rush for private attorneys.

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To see an example of the claims against Salesforce, here are some key “allegations”:

“[B]ehind closed doors, Salesforce’s data tools were actually providing the  backbone of Backpage’s exponential growth”

“Salesforce boasts that using its services and CRM has proven track record of increasing business.”

“Salesforce’s CRM successfully provided the following tools to Backpage, leading to Backpage’s exponential growth:

    • Creating custom SMS platforms for Backpage to contact and procure customers;
    • Creating a custom data deduplication tool for Backpage’s use;
    • Creating a custom API to Backpage’s servers;
    • Creating a custom PPI for Backpage’s payment systems;
    • Identifying and categorizing sales opportunities to traffickers and pimps for Backpage;
    • Identifying and increasing referrals from existing traffickers and pimps using Backpage by creating cross-selling and upselling opportunities;
    • Managing marketing campaigns to traffickers and pimps for Backpage;
    • Managing trafficker and pimp histories of Backpage including their previous history with Backpage, any outstanding customer issues, and more;
    • Gathering and managing information from Backpage’s traffickers’ and pimps’ public social media activity, including but not limited to their likes and dislikes and what they are saying and sharing about Backpage and its competitors;
    • Providing and managing Backpage’s trafficker and pimp database as well as tracking and collecting trafficker and john data across multiple platforms including phone, email, and social media;
    • Collecting and managing traffickers’ and pimps’ data across multiple sources and channels and using this information to promote Backpage;
    • Automatically generating insights into traffickers’ and pimps’ purchasing habits to help Backpage understand the traffickers and johns better and predicting how they will feel and act so Backpage could prepare the right outreach;
    • Providing and managing a secure cloud storage database for Backpage to store (and secure) the unspeakable details of its sex trafficking business; and
    • Providing and managing marketing strategies for Backpage to pimps and human traffickers.”

[Note that this happens whenever any site or service uses the Salesforce CRM — and the code adjusts automatically to the site or services’s needs and designs.]