Unreported / Non-Citable
Background
Jane Doe, identified as K.B., sued Meta Platforms, Inc. (formerly Facebook, Inc.) and Backpage.com, LLC in the Northern District of California; this appeal concerns only Meta. The memorandum does not recount the facts. Doe asserted a civil sex-trafficking claim under 18 U.S.C. § 1595, which reaches whoever knowingly benefits financially from a venture it knew or should have known engaged in sex trafficking, and California product-liability claims for design defects and failure to warn concerning Instagram.
District Judge Rita F. Lin dismissed the claims against Meta, and Doe appealed. The panel reviewed the Rule 12(b)(6) dismissal de novo and noted that the district court addressed only Section 230 of the Communications Decency Act, not whether the claims are otherwise cognizable. The memorandum does not say whether leave to amend was granted. Doe's allegations, not findings, were that Meta did not ban traffickers or take reasonable steps against trafficking, Instagram's algorithms recommended connections between traffickers and vulnerable users, account setup lacked identity and age verification, reporting tools were inadequate, and no warnings were given.
The Court’s Holding
In an unpublished memorandum, Judges Lee, Mendoza, and De Alba affirmed in part, reversed in part, and remanded. Applying the Barnes v. Yahoo! test claim by claim, the court held Section 230 bars the Section 1595 claim. Failing to ban traffickers or review user profiles is publisher activity, and Doe could not plead around immunity by framing the claim around connection algorithms, citing Dyroff. Moody v. NetChoice did not overrule Dyroff.
The design-defect claim was split. The identity and age verification theory is barred because such requirements implicate Meta's role as a publisher, following Grindr; Lemmon v. Snap was distinguished because verification duties are not independent of publishing. The reporting theory survives. Relying on Doe 1 v. Twitter, the court reasoned that improving a reporting mechanism would not necessarily require Meta to monitor third-party content, so Meta is not immune on that theory. It rejected Meta's reliance on 18 U.S.C. § 2258A and found another Ninth Circuit decision unhelpful because those plaintiffs forfeited their reporting argument.
The failure-to-warn claim is barred. Under Grindr, a platform's role as publisher does not create a duty to warn of a general possibility of harm from users who might misuse it for crimes, and Doe did not allege independent knowledge of a conspiracy, unlike the situations in Internet Brands and Yolo Technologies. If any claim survives, the district court should decide in the first instance Meta's alternative argument that the claims are not cognizable.
Key Takeaways
- Theories that fault a platform for not banning traffickers, not reviewing profiles, or recommending connections through algorithms are treated as publisher claims under Section 230 in this panel's analysis.
- Identity and age verification design claims are barred, while claims aimed at inadequate reporting tools may proceed because they do not necessarily require monitoring third-party content.
- A failure-to-warn claim based on general risks of misuse fails absent allegations of independent knowledge of a conspiracy outside the platform's publishing function.
- The remaining open issue is whether the surviving reporting theory states a cognizable California claim, which the district court has not yet decided.
- Because the disposition is unpublished, it is not precedent except as allowed by Ninth Circuit Rule 36-3.
Why It Matters
The memorandum shows how the Ninth Circuit applies Section 230 to a single complaint: it separates theories by whether the asserted duty depends on monitoring or publishing user content. Verification and warning theories fall on the immune side, while a reporting-tool theory survives under Twitter.
Its weight is limited. It is nonprecedential, resolves only Section 230, and leaves open both the cognizability and the merits of the surviving reporting theory; nothing in it finds that Meta did anything wrong. It may be cited only as Rule 36-3 permits.