made please report my name is john montgomery with of course permission i'd like to first address the issues under section two thirty of the communications decency act and then turn to the rule twelve b six issues on the so called trafficking in chapter ninety three a claim unless there are questions from the court requires to rest on our briefs on the intellectual property issues i'm also hoping that i have two minutes left for the plaintiffs as the court those are three young women who were victims of sex trafficking at about age fifteen through a website called age dot com a website that has created a digital marketplace that we allege is devoted principly to illegal commercial sex including with children our principal claims are that back page is in gauged in intentional criminal conduct in violation of the trafficking victims protection reauthorization act and the parallel massachusetts if you trafficking statute each of which of course contains private rights of action the plausibility of those planes has been enhanced in recent weeks by assertion of the fifth amendment by back page executives in response to subpoenas and i did state senate evolving exactly the same conduct conceptual assura issue that i think will help me understand the relevance of what's about to follow the t v p a has a standard for what counts as being a participant that's ok then there's a complaint alleging certain facts that purport to say that page was a participant correct for purposes of understanding the scope of section two thirty in a case in which there's been a complaint filed under the t v today are we supposed to judge whether to thirty applies based on what the complaint says were based on what the t v p a says counts as a participant you follow that distinction because the complaint we don't know we don't have before us a ruling as whether the complaint makes out a statement of a claim of being a participant right we know it intends to do that so for  purposes of figure out whether two thirty applies i'm i supposed to be thinking about those two thirty applied to a valid t v a claim or am i supposed to be thinking about just to thirty apply to your actual complaint under the t v i think if if i am the plausibility of the claims itself one or the other but if you you know leave it to the district court to assess the plausibility of the plans that i think that you in order to address section two thirty you have to assume that we have stated a valid claim based on all x that you've put forward based on the facts that we even if we were of the view that the t v actually required more well if you're of the view that the t v if you are a actually requires more than you're getting much closer to actually assessing the plausibility and that's why i'm trying to figure out how can i trust i think i'm trying to figure out how to how to apply to thirty right because in this case it seems to me it may matter which of those two things i'm doing if the t v if you require for example in aiding and abetting standard the question with a two thirty applies in my mind might be different then if the t v a required something much less look more like just pure publishing activity in the complaint seems to me ambiguous  the statute in response to its perception about the significance of this problem and the importance of a private right of action if congress had in mind just means it would have been standard does it does that mean you don't have to share the object conduct which is which is committed with the purpose of specific purpose of furthering the sex trafficking in other words i don't see where the middle ground is that you're referring to when you say much more  much more seems to take you to a stage in which there has to be purposeful acts with the object of facilitating transects and that is what we are alleging he is not a traditional publisher what's the decide what's between that and simply publishing an advertisement which you know is intended to facilitate sex sex trafficking by those who place the at a big difference because what we've got here is the creation of a digital marketplace that provides in effect a brokering service for the you know offers for sale and purchase of illegal saps and i don't see that that if there is a firm it isn't the methodology here to say we've got we've got the sanction to forty munity you've made certain allegations in the complaint we've got to make a determination as i see it as to the six issues first it would make this i think much easier but that not having occurred i agree entirely you know with your honor that this is what is but this is what makes that critical to understand what you are saying counts as being a participant in your complaint if that's how you want us to do it and one possibilities are saying that they intended to have the purpose of furthering the sex trafficking another is that they intended to have the purpose of furthering the publishing of sex trafficking at those are different things those are different so which of the two are you pleading well both but so you that different from what a news paper does when it has a special advertising section on washington's birthday for washington's birthday card sales clearly what the what the publisher of the newspapers doing  is is is trying to create a more vibrant marketplace with the sale of carmen's that's what publishers do and it seems to me that the your answer to judge barron in effect says well  this case instead of furthering the selling of cars the object of the publisher of the person running the site was was to create a more vibrant market  in our possibility of more vibrant market inspector a that that leaves him in the same position as the as the publisher of the newspaper that's going to be entirely different if the publisher of the newspaper said come on down everybody and we're actually going to negotiate these actual conduct that the t v p r a i keep saying it incorrectly prohibits though in this digital marketplace that they have created they host communications offline but tween the sellers of illegal sites including with children and buyers that occurs on their site and it's an essential part of what we've described in the complaint as this digital marketplace that they have created there are many other aspects of the marketplace conduct that they've engaged in in order to make that market that they created more vibrant to grow that market to increase the volume seller online we wouldn't normally think that it is an object of the publisher to have the sale occur we only think the publishers interest is to have the advertisement be venture to sex traffic as opposed to advertise well there they are participating in the venture that is the point if you assume if that's worth curtains up but you have to if you assume that that's the case and what we have is affirmative that is distinct and very distinct from anything that publishers do it's you know if you permit you to involve lycos case in this court's like of space when you were discussing that treat as a publisher element the court wisht between the case you had in front of you and a case in which the defendant was actually involved online as a host with securities transactions themselves and if they were doing that if they were taking that misinformation if they were creating markets somehow otherwise supporting or advancing violations of the securities laws of lycos i believe you were suggesting that opinion may have come out differently that's what we have here only i don't want to will whatever sequence you have in your argument but at some point will you respond to the last night you know that this month gone remade that there is something more than i've seen going on there is in fact the the short answer is that there is nothing alleged in the complaint that is anything other than a traditional publisher that traditional editorial functions at a publisher conducts it and all of the plaintiffs argument is essentially an attempt to attack the website as a whole by calling it things such as that digital marketplace but the proper focus of section two thirty inquiry is who created the content that's at issue in the case the ads about these steers parents toward certain advertising lipids that's one of the hallmarks of their of their briefing but how does it do that by screening draft advertisements for certain non permitted words and phrases using an automated filtering system that's  four of the complaint screening in filtering as the court held in lycos is precisely what section two thirty is intended to incentivize and to protect against claims from after all these claims can really people down to the argument that backpage dot com didn't do enough to screen out and prevent the publication of these particular ads which caused this particular harm otherwise the complaint is largely i tacked on the entire website of back page rather than trying to focus on this it advertisements that allegedly caused the injury here the court in lycos said that the general construct and operation of a website cannot doesn't allow a party to avoid the subject of who created the content at issue in the case it's really a very simple test that congress set forth who created the content that's an issue and other courts have rejected it that's right that's right of the it but that's and whether you are producing the content which is i understand do not contesting that they're focused on whether you're being treated as a publisher and their contention is because of your intentions this is not a case in which all you're being held liable for is publishing the work of another you are being held liable if we let it go forward we're being a participant in a sex trafficking venture publishers don't normally think of as people who are participants in the ventures they advertise for so the issue is if they pledge enough to take you beyond the on being just a publisher to being actual participant in the venture i take it you agree that it is possible for a publisher even though they're a publisher to also be a participant in a sex trafficking venture you could be facts right where that the pimp himself runs a website and publishes the ads in that circumstance you might think that the publishing of the ads makes them a participant in the sex trafficking venture yes ok so if that's true then the issue here it seems to me is have they pled enough to show that you are a participant on back pages  what is required to make one a participant in a sex trafficking venture your honor respectfully the question is whether they have pled enough in their complaint to take the case out of section two thirty which requires immunity if the suggest that you do your company is a participant as accessing venture and so i'm trying to get a sense from your perspective you say no well what do you think is required in order to believe that one is a participant in a sex trafficking that he answer is an emphatic and functions well you're right but the argument that the plaintiffs can hold back pages liable for misrepresentation that back page made to other people that these plaintiffs did not rely on or were not harm a particularly novel argument but it certainly doesn't that's not that's not the argument but that's the risk representation claim this is a question as to whether those additional statements played in the complaint suggest that the intention of back page is not the intention of an ordinary publisher of an advertisement but is enough to indicate that they have an interest in the actual sex trafficking therefore they're a participant in the venture well your hon particular element of the t v p r a elements of the claim there is at least one court and that has helped or at least strongly suggested that a at aiding and abetting standard is required in order to say to claim under the advertisement succeed because that would be i suppose like any sure who publishes an ads because he wants them to succeed or people wouldn't he advertise well your honor that is that is a perfectly fair point and i would indeed weigh on sort of putting words in your mouth but if if i'm going astray you tell me who says this is the time for me to find how well it ing and abetting your honor of course requires that back page was associated with a particular criminal endeavor and the notion that a publisher a newspaper becomes associated with a criminal endeavor from publishing an advertisement is a particularly aggressive view of aiding and abetting  response would be and if even if that were the case then they still would be quite require an intent to ensure the success of a particular crime and here there really is no allegation in the complaint or any plausible allegation a back page dot com intended any particular crime to succeed backtrace dot com after all has terms and conditions that prohibit the posting of ads for illegal services and there is simply no allegation of the kind of specific intent that one would need for a criminal statute and it really boils down to the question of whether or not the claims in this case treat back page dot com as a publisher and when you boil down the plaintiff's allegations they really do all surround publisher functions at least to the extent they're talking about how they are harms came about plaintiffs allege that their harms came about from being advertised on playing on back pages there harms came about because people responded to those acts that necessarily that claim when you boil it down necessarily treats back page dot com as the publisher of the ad and you cannot lead around that site that would be equally true if they had evidence of it in the beginning wouldn't well you want to there is the cases of hell that there is no criminal intent exception to section two thirds protection this is been tried before in many cases for example in  which we've cited in our reef there was a claim brought under this very statute fifteen ninety five by a plaintiff who sought to hold back page dot com liable for this in this same in the same civil provision associated with the criminal statute in the end they court dismissed the case holding that really what was being alleged here is the same thing that we're arguing here this was publisher conduct that that was being alleged at the heart of the case and that  if there's no criminal intent exception if we took that you then a publisher that even didn't have direct evidence of their desire to have the sex trafficking venture succeed in a more specific sense maybe than you're saying was  here you would take the position that two thirty would bar even not from going forward as civil claim yes your honor i would remember section two thirty has an exception for federal criminal prosecution but not an exception for civil claims based on statutes that may be associated with with criminal statutes as well that's why when i began here i said that the proper focus here is on what are the facts alleged and do those facts treat back he's talking as a publisher information regardless of the cause of action pleaded regardless of the standards of the t v p s a the question is whether the claims whether back page dot com is an information content provider it is whether the claim stems from a third party conduct  pornography and illegal ticket scalping in many of those cases and all those cases really the courts have said no there is no exception just because somebody please explain that happens to be associated with the underlying liability there didn't depend on a claim that a person was the participant in the venture in other words it may be that there's no inducement exception as a general matter to section two thirty so that in a defamation case the fact that you induced the defamation wouldn't make it to thirty in a political but here we don't have a case in which there's liability for the publishing the liability it's where the patient in the venture so inducement comes not to an exception to two thirty it comes from the claim itself you want i respectfully disagree here we do have a claim that the harm is from the publishing there is no claim that the harm is from participation when you actually look at the facts of the complaint the complaint is that these plaintiffs were advertised and it says right on the face of the complaint that as a result of the publication of the advertisements at paragraphs eighty nine ninety nine and one hundred three it says as a result of the publication of the advertisements the places were victimized mr montgomery can call that part that publication participation by by the court set of handle these cases for attempts to plead around the fundamental two thirty test through repackaging publisher claims as something else which i think is what was going on here dover says my space for example a thirteen year old girl created a profile on my space where she met a man who then sexually assaulted her she sued my space just like the plaintiffs do here for alleged failure to implement age verification process seize and just like the plaintiffs he or she argued she wasn't trying to impute the content of her communications with her assailant to my space but the fifth circuit rejected that argument and hope the claims treat my space as a publisher because the harms were based on third party content here the plaintiffs allege that they enforcement which does seem different than the typical kind of publisher activity so if we thought that took it outside to thirty why does the ninety three a claim fail because ninety a requires showing of causation of the harm that stems from the unfair or deceptive act or practice that is the latch and here the plaintiffs allege a an incredibly circuitous causation theory they say that back page dot com caused their injury by working with law enforcement and with the national center for missing and exploited children to any routes they say to deflect public scrutiny thereby lowering to transact to supply side transaction costs of sex trafficking thereby allowing the online market to grow this inspanned it market allegedly and stare at the plaintiffs where it otherwise might not have it back pay should not cooperated with and with law enforcement it is not implausible allegation even in the pleading stage to speculate that you're into these might not have occurred but for back page dot coms voluntary cooperation with law enforcement ninety three eight requires a plaintiff to show that she suffered a separate identifiable harm arising from the violation itself that there is a causal connection to be unfair or deceptive act and as it as an additional matter this was a ninety three a claim brought under section nine of one thousand nine hundred ninety three day was generally applies to consumer claims but places really aren't alleging a consumer claim here they're alleging that back page dot com did something that affected a market generally and that might have impacted them but as i say that between traffickers and buyers i prefer the court to paragraph fifty of the complaint pages twenty one and twenty two which describes  that aspect of the site including the quote back page dot com servers hosting maintain the database of email conversations between pimps or traffickers and the customers without regard to the content of the messages and  i think what you've seen in the briefs and i and what you just heard from mr pile make one of the points that that we'd like the court to take away which is that back page is proposing a radical interpretation of section two thirty which essentially reads the treaty as a publisher element out of the statute all that's required according to back page which is why they can reach both the trafficking claims and the ninety three a claim which i agree judge karen is entirely different they could reach it all because they can say it has some nexus to publish it publishing is or the content of a message is somehow a part of the causal chain underlies the claims and that's enough but that is not what tree is a publisher means it's not what congress had in mind because that use you with a statute in which congress and i would suggest unwittingly  has created an exemption a free pass or as the ninth circuit put it a lawless no me on the line and just to get a sense of the limits of your argument suppose we had a different kind of back page in which they did all these same types of activities but the people who seemed to use the site were people who wanted to say nasty in scurrilous things about people so they publish defamatory comments all the time violates the criminal law which violates an a stablish standard that congress has created quite recently which says in these important to the enforcement of our criminal law that we provide private rights of action crossing that puts this case an entirely different dimension and poses if the court agrees that to thirty doesn't apply really no risk to the otherwise you know very legitimate policy light on what is going on with back page and to establish whether allegations really can be made out