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Dec 23, 2019

Lawyer argues product liability claims in Facebook suit over sex trafficking

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A Texas attorney is taking on Facebook's Section 230 immunity shield, and so far she's still advancing in the courts.

Of all the battles Facebook is fighting right now, it probably didn’t expect Annie McAdams of Houston, Texas. She’s a personal injury lawyer, and is arguing on behalf of her clients that Facebook is legally liable for what it is not doing to protect minors from being sex trafficked on its sites.

She’s intent on forcing a conversation, if not a ruling, on Section 230 of the Communications Decency Act — the federal law that shields internet companies from liability for a lot of what happens on their platforms. McAdams filed three lawsuits in Texas, and one in Tennessee. Facebook is asking that the cases not move forward, citing immunity under Section 230.

But McAdams is making progress. “Marketplace Tech” host Molly Wood asked her to lay out her arguments. The following is an edited transcript of the conversation.

Annie McAdams: Here’s what we know. In every single case, every victim that we met, there’s one commonality. They met their trafficker on Facebook, [or] they met their trafficker on Instagram. In some cases, they were actually sold on these social media sites.

Molly Wood: How did they meet them?

McAdams: They reach out to them. The way I describe it is, it’s basically bringing — it’s bridging — the sex trafficker right into the living room of the child. If your product does that, you have responsibilities when you know that there’s harms, and Facebook doesn’t do anything.

Wood: The idea is that Facebook is a product, and if Facebook the company knows that its product is being used for this particular harm, that it is therefore legally liable?

McAdams: Correct.

Wood: How does that run into Section 230 and the broad immunity?

McAdams: In response to our lawsuits, Facebook has asserted immunity from Section 230, saying “As a tech company, we are immune from any and all liability against any of these types of claims, whether it be negligence product liability, or chapter 90 sex trafficking claims.” Aside from the gun industry, there is no other industry in this country that enjoys this immunity. Facebook’s lawyers actually stood up and on the record said, “Judge, we can’t have product liability, because it would just be too much liability.” It’s really insane because we really have tech companies showing up in the United States courts, saying, ” under no circumstance should we be held accountable.”

(Photo courtesy of McAdams)

Wood: What about that argument that the liability would be too great? This is considered the law that essentially built the modern internet economy, you could imagine that a company like Google, like search, could not in theory exist in its current form without some version of Section 230 protection.

McAdams: No, and I agree with you, and the reason for that is because it’s a important protection, but it’s an important protection that needs to exist in a very limited capacity. The CDA started with the intention to protect our children from the harms of child pornography, and then was evolved through the court system to then say that somehow tech companies should be protected from knowingly participating or facilitating in sex trafficking. That is a far cry from where we started in 1996. How do we want the internet to function now?

Wood: So far, the only other attempt to add some more guardrails to Section 230 was a federal law, passed last year to stop sex trafficking, called FOSTA-SESTA. But you believe that’s not enough?

McAdams: Not in regards to sex trafficking. Well, I actually do believe it’s enough if the courts support Congress’s intent. Congress and the state legislators have done their work. They have provided the tools to fight sex trafficking, and now it’s time for those tools to be picked up by the lawyers to bring it in front of the juries to allow the juries to do their job. I do believe that if the sex trafficking cases are permitted to go through a jury and immunity is not extended, then the Seventh Amendment is going to do its own work.

Wood: Can I just clarify? Are you saying that because FOSTA-SESTA exists, that is in some ways the basis for the product liability argument that you’re making now, lawsuits that you’re filing now?

McAdams: Correct. Slight distinction — I wouldn’t say that it’s the basis, but it is the shield that will allow us to protect ourselves from the immunity argument. We did not file our lawsuits pursuant to FOSTA-SESTA, but we are certainly responding to the tech companies’ immunity argument under the CDA with FOSTA-SESTA protections.

Wood: I’m listening to you and I’m thinking this is the woman for the job You like a fight. But do you ever feel intimidated by the sheer resources?

McAdams: Honestly, not a bit. You bring in 19 lawyers from San Francisco, it just motivates me more. I feel bad, almost a little bit, that they’re paying so much for such poor quality lawyers, but if it takes 19 versus my team, that’s fin — it’s just motivating. This is not new, I’ve handled significant litigation in the past. I think it’s almost fun — in a way — because we’re dealing with a level of arrogance in board operations and in executive functioning that is not common. You can’t make up that Marc Benioff [chair and co-CEO of Salesforce] gets on Twitter and says #abolishtheCDA the same day he files a defense against us. That’s trial lawyer gold. That makes it fun for us.

The team

Molly Wood Host
Jody Becker Interim Senior Producer
Stephanie Hughes Producer

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