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Comment by will_brown | Hacker News Reader

>Should we also allow Microsoft to be sued for all the criminals that use windows?

If a company provides products/services to someone with the knowledge those products/services will be used for a crime...then yes.

For example it’s legal for an arms dealer to sell a gun, but illegal to sell a gun if the seller knows the gun is being purchased with the intent of being used in a crime.

Here what you have is Salesforce who allegedly sold its products/services to backpage knowing their software would specifically be used to facilitate prostitution and human trafficking. Whereas you - for whatever reasons - seem to be concluding salesforce had no way of knowing their products/services would be used by backpage in the commission of a crime (ie your Windows analogy). However, the facts suggest SalesForce was well aware of backpages business practices and activities (and was publicly fighting against the same criminal activity, while simultaneously supplying software that facilitated the same). It’s a tough case but human slaves and a corporation privately profiting from these activities while publicly “fighting” against the same won’t play well to a jury.

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GP isn’t asking whether it's legal to sue software companies for the acts of users. He’s asking if it's right and/or sensible.

There are many, many corporations that sold services to Backpage. If the red line is built around awareness of wrongdoing, you are just going to create an incentive for corporations to stop being socially active and an incentive to remain ignorant to customers' backgrounds.

Yes, we may want to regulate certain influential industries to require them to do due diligence on their clientele. No, I don't think it makes sense to penalize these players before this regulation is put in place due to the perverse incentives.

>GP isn’t asking whether it's legal to sue software companies for the acts of users. He’s asking if it's right and/or sensible.

Ok...but it’s a much narrower issue because it’s not about a software vendor being sued for the acts of their customers. It’s being sued for selling your goods/services where you knew or should have known the buyer was going to use your good/service to commit a crime.

So in the extreme case, if a mass shooter told their plans to an arms dealer and the arms dealer sold the gun anyway...then yes, I don’t think many people will argue with the intent of the law.

Here the facts can be blurred a little more, where SF will say we just built a data base we didn’t know how it would be used, and if we did know how it would be used then we didn’t know that use was a crime, and if we did know it was a crime we felt defense xyz would apply.

No one is saying anything about due diligence. “Know or should have known” is a legal term of art and I think everyone is implying it creates an impossible burden for tech companies to comply with. And these aren’t regulations being “put in place” as you suggest, it’s long established Law.

A bunch of Salesforce devs are hired to work on a human trafficking site. Do they all shrug and keep working? Or does Salesforce perhaps keep a special team of devs who are happy to participate in illegal actions?

I doubt the conspiracy angle here and think someone would have talked. Either the site as coded didn't have any apparent links to trafficking or Salesforce didn't participate beyond some unknowing consultation that they would give to anyone who asked.

Well that’s part of the discovery process of litigation, find out who knew what and when they knew it.

I think it’s hard to bury your head in the sand if you are salesforce and say you had no idea of backpage’s business activities and/or how your products/services would help those specific business activities...especially where the companies public facing side engages in an anti-human trafficking/prostitution PR campaign.

I've never been but from what I've read it's best to think of Backpage as a Cragislist circa 2015. It allowed for a bunch of different types of posts but charged and made the majority of their income from their adult section.

Most "Salesforce" devs arent employed by Salesforce inc. The devs that customize the platform are usually consultants or employed by the businesses using the platform.

Craigslist also had an adult section. Should anyone who sold software to Craigslist be held legally responsible as well?

Yeah, but on Craigslist you can't lead capture and convert to contacts and opportunities with cross-object reporting /s

I can’t answer “if we should”...only as I explained above that under the law what you describe isn’t enough on its own to create liability for the service provide, the legal threshold is whether the seller knew the buyer would use the good/service in commission of a crime.

So for example the power company who sold power to run backpage, could they be liable? Probably not.

But a tech company who allegedly custom built a database to facilitate backpages human trafficking/prostitution activities...maybe

They custom built a database to facilitate an adult classifieds section. Which on its face is not illegal, and the argument it was illegal was based on a technicality related to filtering and word replacement that removed their safe harbor protections. The owners themselves did not know this until the court case was decided years later so it seems weird to presume that Salesforce could know it.

I do not believe to be true any longer. A recent law passed by congress, H.R. 1865 made that illegal in an effort to fight online sex trafficking.

Backpage was shut down before the law went into effect so I assume the Salesforce work was done before the law went into effect as well.

>SalesForce was well aware of backpages business practices and activities

backpage had been doing its business in the open in USA for almost 10 years when it became client of Salesforce in 2013. So, until 2018 no DA was bothered by the human trafficking supposedly rampant on backpage during that time, while it sounds that it was Salesforce's burden to do that the DAs hadn't and wouldn't for years - i.e. to perform investigation, etc.

Do we really want a massive SaaS company to criminally investigate its clients at its own initiative? May be it is exactly what we want - I think there is a massive attack across the board on the provider safe harbor principle with the goal to scare the providers into skittish self-censorship which the most and foremost would affect the basic civic freedoms.

>Do we really want a massive SaaS company to criminally investigate its clients at its own initiative?

I think my arms dealer provides a much clearer example of facts removed from tech where people in HN are understandably defensive.

The law doesn’t require a seller of goods/services to investigate a buyers intent, but the law does create liability if the seller knew or should have known the buyer intended to use the good/service in the commission of a crime.

So in the case of an arms dealer if the buyer uses the gun in a crime, the arms dealer is only liable if they knew or should have known, but the law isn’t requiring the seller investigate (but if facts tend to show the buyer was discussing using the gun for crime xyz to the seller, then yes the seller could be liable).

I think this is good, others may disagree and say sellers should be able to sell goods/services where they know the buyer intends to use the same in commission of a crime...but the investigation is beyond the legal scope of what is required by law and I don’t think anyone is suggested that become the law.

> but the law does create liability if the seller knew or should have known the buyer intended to use the good/service in the commission of a crime.

It does? I’m a (former) lawyer and this is news to me. Not saying it’s wrong, just wondering what the crime is (aiding and abetting? accomplice liability? conspiracy?) I’m not sure how any of these quite fit. Would love to be enlightened!

>Not saying it’s wrong, just wondering what the crime is (aiding and abetting?

I didn’t say it was a crime I said it creates liability, this is a civil case about civil liability after all.

For example there are tons of civil cases against businesses that sell ammunition, there are endless such cases against Walmart alone, where the ammunition ends up being used in the commission of a crime.

More often than not Walmart prevails in the ammo cases because there is usually no evidence showing Walmart knew or should have known the buyers intent to use the bullets in a crime (it’s probably true that many times the buyers had not such intent when the bought the ammo). Still there are cases where plaintiffs can prove the seller did in fact know, should have known or even could have predicted the intent of the buyer to use the ammo in a crime.

All that said it’s also true, though far less likely the liability could raise to a criminal level.

Would the civil liability be under tort law or something else? The first requirement for tort liability is that the defendant owe a duty of care to the plaintiff. There are some exceptions to this, but I’d be curious to know the theory here. I understand that people sue Walmart for ammo sales and such, but is there any chance that a shop owner who sells, for example, duct tape, a ski mask, and zip ties to a kidnapper could have even civil liability? The shop owner has no legal duty (even civil) to the potential victim, who may not even be identified at the time of sale. how would the shop owner be liable? I’m still not seeing it. If you can just point me to the ammo cases then I can just read up on how these cases work.

> Would the civil liability be under tort law or something else?

One obvious basis would be in tort, more specifically negligence; similar to (perhaps a subtype of) negligent entrustment.

> The first requirement for tort liability is that the defendant owe a duty of care to the plaintiff.

That's the first requirement for negligence, not all tort liability.

> I understand that people sue Walmart for ammo sales and such, but is there any chance that a shop owner who sells, for example, duct tape, a ski mask, and zip ties to a kidnapper could have even civil liability?

Yes, quite likely, if they actually knew, or reasonably should have known, the kidnapper intended to use it in a kidnapping, and the harms at issue are of a time that should be reasonably foreseen in such use.

> The shop owner has no legal duty (even civil) to the potential victim

True under the very old common law where duty was found only in privity, but untrue with the modern rule which incorporates the general duty of care—which is generally a duty to act so as not to cause reasonably foreseeable harm.

Looks like negligent entrustment is typically limited to automobiles, and then only when the person to whom it is being entrusted is intoxicated or has a reputation for intoxication.

You're right that duty is a requirement of negligence, not all tort liability — thanks for correcting this.

I'm still not clear on how liability would result in this sort of hypo. Are there statutes establishing liability? Is it common law? Either way, what are the legal requirements, bright lines, etc.? Just looking for some good old fashioned IRAC here, if you know what I mean :)

>shop owner who sells, for example, duct tape, a ski mask, and zip ties to a kidnapper could have even civil liability?

I feel this has been exhaustively explained and reexplained throughout the thread, so the answer is: maybe...if the shop owner knew or should have known those items would be used in the commission of a crime, then yes there is potential liability. In your example even if the kidnapper didn’t disclose his intent the particular grouping of items may in fact suggest the shop owner knew or should have known, and of course other facts are relevant. For example, it’s a small town and the shop owner knows the purchaser as a felon with a history of violent crimes using duct tape and a ski mask.

That said maybe the facts suggest the shop owner didn’t know and had no reason to even predict the items would be used in a crime (maybe these are items typically purchased together from the shop).

As dragonwriter stated these cases are typically negligence cases, especially in firearms/ammo cases where there is federal law to protect arms dealers (thank NRA).

Here is a link to an article about a ammo case against Walmart (sold bullets to a drunk guy who gave the bullets to a kid after walking outside and 15 minutes after purchase shot and killed someone), my guess is Walmart won’t be found negligent. The article notes a second case where a gun shop sold a gun to someone who workers had suspicions was buying the gun for someone else (the gun was bought for someone else who used it to kill 2 police), they were found liable. https://www.google.com/amp/s/www.cnbc.com/amp/2016/01/08/wal...

Here is a second article against Walmart again where Walmart entered into a confidential settlement before trial. https://www.google.com/amp/s/www.mcall.com/news/breaking/mc-...

Sorry don’t have the time now to pull up the case styles.

> I feel this has been exhaustively explained and reexplained throughout the thread

Sorry — I'm on mobile and was just looking at this thread via /comments. Didn't realized it had been discussed elsewhere. Thanks for sharing the case info. Sounds like there haven't been (m)any cases where liability was established, which fits with my understanding of the limits of tort law (and lack of similar statutory laws).

The second case in the first link there was a trial and verdict finding liability for the seller (note there was evidence the gun shop employees had suspicions the buyer was illegally buying the gun/ammo for someone else, they sold it anyway, and the gun/ammo was bought for someone else who used the same to kill 2 police).

Again one must Keep in mind <10% of cases go to trial and verdict, so the result speaks for itself, but you are right. In general there aren’t a ton of cases against merchants alleging they sold an item they knew would be used in a crime - it should be a surprise most criminals don’t announce their intent when making purchases - and gun/ammo cases are about as prolific as any for these claims (hence why I keep using that hypothetical).

A prime example is The 2nd article Walmart where they settled that case, so we will never know, but if Walmart settles it’s safe to say there were facts suggesting Walmart liability meaning in that case they knew or should have known they were selling ammo that would be used in a crime.

I’d place my money on SF settling this case in the same fashion, not to say they would be found liable at trial, it just seems with the available facts there is potential liability and these facts won’t play well to a jury.

>I think my arms dealer provides a much clearer example of facts removed from tech where people in HN are understandably defensive.

guns are much simpler situation, and this is why it doesn't make the situation clearer. Imagine if that specific gun dealer could look into the brain of a buyer. Would you hold him accountable for not checking the Parkland shooter's brain?

>the law does create liability if the seller knew or should have known the buyer intended to use the good/service in the commission of a crime.

Is SaaS company "should have known" what is in the data it is SaaS-ing? We know that the answer is "yes" for banks according to the explicitly written money laundering, etc. laws. There arent such explicit laws for SaaS, for Facebook, etc. Is Facebook liable if somebody uses it organize a crime like say a bank robbery or an unpermitted protest?

>Imagine if that specific gun dealer could look into the brain of a buyer. Would you hold him accountable for not checking the Parkland shooter's brain?

It’s an interesting thought experiment, but that’s not the legal burden of sellers to crawl into the mind of the purchaser. Further, it’s not about selling an item that is used in a crime, it’s selling an item you know or should know will be used in a crime. I don’t know enough about the parkland shooter purchases but it’s at least possible: 1. The shooter didn’t have intent to commit a crime when he purchased the gun/ammo and only developed the intent later after the purchase (no liability for the seller under this theory), or 2. The seller didn’t know the shooters intent and there are no facts suggesting the seller should have known.

The Law and application of the same has more common sense than saying a seller should have known...if only they read the mind of the buyer.

> So, until 2018 no DA was bothered by the human trafficking supposedly rampant on backpage during that time

Backpage was working hard at outwardly projecting an image of fighting trafficking; it's efforts to conceal and promote trafficking were hidden in its backend software and internal processes. To the extent Salesforce was involved in implementing that software, it's quite plausible that they would have had actual awareness of the details of those efforts well before any DA did.

(Also, DAs had frequently pursued sex trafficking allegedly being done through Backpage prior to the time they had uncovered sufficient evidence to charge that Backpage itself was actively and deliberately promoting it.)

"the facts suggest SalesForce was well aware of backpages business practices and activities"

source?

The article we are commenting on...

>“Salesforce knew the scourge of sex trafficking because it sought publicity for trying to stop it," according to the complaint.

Allegedly salesforce had a PR campaign against human trafficking and prostitution and knew backpage was in the business of facilitating the same when it elected to do business with backpage and that their software would specifically be used to facilitate this part of the business.

Can we get some dates on those facts?

Too many time I have seen evidence like this, only to later see that the dates changes the context.

Did Salesforce have a PR campaign against human trafficking and prostitution before or after Backpage got seized by U.S. authorities in April 2018? Before or after Backpage became a customer? Before or after the adult section? Before or after it was generally known to include sex trafficking (which given a glance on the wikipedia article is sometimes around 2012-ish?

The other question is why did it take U.S. authorities until April 2018, 14 years after backpage was launched and 6 years after it was generally known? Were they incompetent, a lack of resources, or what? Did saleforce has knowledge that the police did not, and if so when, and why was it not given over to the police? How long time was the investigation and was salveforce involved? Was it a legal grey zone and as such the opinion of lawyers was involved, which we don't know the context or dates of? Did Saleforce get advice from the prosecutor/police?

This case is interesting but to me almost all the important details are currently not public.

Can you just read the article? Almost all your questions are answered or linked to in the article.

Actually missed that they did say a date, which is... After the police seized Backpage in April 2018.

"The company is helping to sponsor an anti-human-trafficking event in April"

It also said its nonprofit arm spotlighted groups that worked on the front lines of the issue in 2017, which could be said to be PR campaign but it is stretching the meaning of a PR campaign a bit.

"The lawsuit includes an order form billed to Backpage that’s dated in December 2016."

Which dates before the campaign done after April 2018, and after the nonprofit arm spotlighted groups in 2017.

So the dates did matter as I suspected. Saleforce did not first do a PR campaign and then elected to do business with backpage (as will_brown said above). They first elected to do business with backpage, had a nonprofit arm spotlighted groups a year later and then did the PR campaign after the police seized Backpage. That implies strongly that the PR campaign was a reaction to the police seizure.

I don’t think I said salesforce did the PR campaign before their business dealings.

It’s also not a legal requirement of the claims (it’s just facts that play well to a jury). The threshold legal issue is did salesforce know or should SF have known their goods/products were being used by backpage to facilitate human trafficking/prostitution.

Party A had done X and Y when it elected to do Z. I kind of read that as X and Y occurring before Z.

As for the subject matter if saleforce knew in 2016 what the FBI acted on in 2018, I don't know. It leaves me with several large questions, the biggest being about why the site lasted for as long as it did. The FBI received continuously information about child sex trafficking and prostitution, and had several court cases dating back to at least 2010.

From a moral perspective its an valid discussion to ask if saleforce should consider their ethical consideration of how their customers utilize their goods and products, but from a legal perspective I kind of look at https://en.wikipedia.org/wiki/Backpage#Legal_decisions and see a complete failure from the legal system to tell the world if the behavior of backpage was illegal. It would not surprise me if saleforced did ask their lawyers and got a OK back.

Please don't insinuate that someone hasn't read an article. "Did you even read the article? It mentions that" can be shortened to "The article mentions that."

https://news.ycombinator.com/newsguidelines.html

It assumes/alleges salesforce knew that Backpage was in human trafficking and they knew backpage was their customer at the same time, neither of which they prove or even attempt to prove.

Gonna wait on the courts for this one, so far its all too much implied and nothing for actual facts.

>It assumes/alleges salesforce knew that Backpage was in human trafficking and they knew backpage was their customer at the same time, neither of which they prove or even attempt to prove.

They haven’t “even attempted to prove their claims?” Have you read the plaintiffs Complaint? What do you think they brought the lawsuit for if not to prove their claims?

I guess I needed a "yet" at the end of that for literalists.

I stated "waiting for the courts" where they would prove their claims.

Specifically, I'm not going to form an opinion on an article with no facts

>Specifically, I'm not going to form an opinion on an article with no facts

It’s very odd you say the article has “no facts”, yet it provides dates for these business dealings, invoices and salesforce anti human trafficking/prostitution efforts...what do you consider a fact? Do you believe salesforce had no idea what backpage was doing and how salesforce products facilitated the same?

While waiting years for the court to decide, you should kno statistically there is less than 10% chance there is a trial that goes to verdict and >90% chance salesforce settles with a requirement of confidentiality and no admission/finding of wrong doing/liability.

>yet it provides dates for these business dealings

That isn't illegal, and doesn't prove what was known by the company at the time.

>and salesforce anti human trafficking/prostitution efforts

Which again, doesn't prove the company knew anything about the client or what the customizations are being used for.

So far we know that salesforce provided services to a company like it does many other companies. We don't know if it participated knowing the business/use case. Those are the facts I"m talking about.

So while you seemingly make your mind up on allegations without facts, I'll wait for facts or otherwise wait to make up my mind. If those facts don't come out, then my mind just doesn't get made up.

A lot of lawsuits are filed without the plaintiff being able to prove their claims.

Even as I speak, a California House Rep (Nunes) is suing a non-existent creature for social media defamation. Nunes cannot prove his claims.

Hell, we have an entire class of laws (anti-SLAPP laws) which exist penalize nuisance lawsuits filed for the sole purpose of silencing or harassing defendants.

How does one judge if Salesforce didn't take the profit from Backpage using its product to help fund the PR campaign against its shady practices? If that was the case, is it still immoral?

I'm not familiar with the timing, but it starts to look like the public campaign against trafficking happened BECAUSE of the involvement with trafficking, in a protest-too-much, absolve-my-sins, overcompensating type of way.

You might find this interesting: https://en.m.wikipedia.org/wiki/IBM_and_the_Holocaust

There were a number of other companies that played both sides of the fence in WW2, including Coca Cola.

I agree, if they knowingly do it, then they should be punished as such. Especially in the US, if we are going to allow corporations to be treated as people for tax and legal reasons, then clearly they should be punished as such. When a person knowingly assists a criminal, that person can be punished for any range of crime from being an accessory to directly involved.

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