United States Court of Appeals, First Circuit.

No. 15-1724.

JANE DOE NO. 1 et al., Plaintiffs, Appellants, v. BACKPAGE.COM, LLC et al., Defendants, Appellees.

March 14, 2016.

Before BARRON, Circuit Judge, SOUTER,* Associate Justice, and SELYA, Circuit Judge.

John T. Montgomery, with whom Ching-Lee Fukuda, Aaron M. Katz, Chris­tine Ezzell Singer, Jessica L, Soto, Rebec­ca C. Ellis, and Ropes & Gray LLP were on brief, for appellants.

Maura Healey, Attorney General of Massachusetts, and Genevieve.C. Nadeau, Deputy Chief, Civil Rights Division, on brief for Commonwealth of Massachusetts, amicus curiae.

Dennis J. Herrera, City Attorney, Victo­ria Wong, Mollie Lee, Elizabeth Pederson, and Mark D. Lipton,' Deputy City Attor­neys, on brief for City and County of San Francisco, amici curiae.

Cathy Hampton, City Attorney, on brief for City of Atlanta, amicus curiae.

Michael N. Feuer, City Attorney, James P. Clark, Mary Clare Molidor, Anh Truong, Sahar Nayeri, and Office of the Los Angeles City Attorney, on brief for City of Los Angeles, California, amicus curiae.

Tracy-Reeve, City Attorney, and Harry Auerbach, Chief Deputy City Attorney, on brief for City of Portland (Oregon), amicus curiae.

Donna L. Edmundson, City Attorney, on brief for City of Houston, amicus curiae.

Shelley R. Smith, City Solicitor, on brief for Michael A. Nutter, Mayor of Philadel­phia, amicus curiae.

Jeffrey Dana, City Solicitor, on brief for City of Providence and Mayor Jorge 0. Elorza, amicus curiae.

Stacey J. Rappaport and Milbank, Tweed, Hadley & McCloy LLP on brief for Covenant House, Demand Abolition, ECPAT-USA, Human -Rights Project for Girls, My Life, My Choice of Justice Re­source Institute, National Crime Victim Law Institute, Sanctuary for Families, and Shared Hope International, amici curiae.

Jenna-A. Hudson, Kami-E. Quinn, Gil­bert LLP, and Andrea Powell, Executive Director, on brief for FAIR Girls, amicus curiae.

Michael Rogoff, Robert Barnes, Oscar Ramallo, and Kaye Scholer LLP, on brief for National Center for Missing and Ex­ploited Children, amicus curiae.

Jeffrey J. Pyle, with whom Robert A. Bertsehe, Prince Lobel Tye LLP, James C. Grant, Ambika K. Doran, and Davis Wright Tremaine LLP were on brief, for appellees.

*

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

SELYA, Circuit Judge.

This is a hard case- — hard not in the sense that the legal issues defy resolution, but hard in the sense that the law requires that we, like the court below, deny relief to plaintiffs whose circumstances evoke out­rage. The result we must reach is rooted in positive law. Congress addressed the right to publish the speech of others in the Information Age when it enacted the Com­munications Decency Act of 1996 (CDA). See 47 U.S.C. § 230. Congress later ad­dressed the need to guard against the evils of sex trafficking when it enacted the Traf­ficking Victims Protection Reauthorization Act of 2008 (TVPRA), codified as relevant here at 18 U.S.C. §§ 1591, 1595. These laudable legislative efforts do not fit to­gether seamlessly, and this case reflects the tension between them. Striking the balance in a way that we believe is consis­tent with both congressional intent and the teachings of precedent, we affirm the dis­trict court’s order of dismissal. The tale follows.

I. BACKGROUND

In reviewing the grant or denial of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we draw upon the well-pleaded facts as they appear in the operative pleading (here, the second amended complaint). See SEC v. Tamb­one, 597 F.3d 436, 438 (1st Cir.2010) (en banc).

Backpage.com provides online classified advertising, allowing users to post adver­tisements in a range of categories based on the product or service being sold.1 Among the categories provided is one for “Adult Entertainment,” which includes a subcate­gory labeled “Escorts.” The site is differ­entiated by geographic area, enabling users to target their advertisements and permitting potential customers to see local postings.

This suit involves advertisements posted in the “Escorts” section for three young women — all minors at the relevant times— who claim to have been victims of sex trafficking. Suing pseudonymously, the women allege that Backpage, with an eye to maximizing its profits, engaged in a course of conduct designed to facilitate sex traffickers’ efforts to advertise their vic­tims on the website. This strategy, the appellants say, led to their victimization.

Past is prologue. In 2010, a competing website (Craigslist) shuttered its adult ad­vertising section due to concerns about sex trafficking. Spying an opportunity, Back-­page expanded its marketing footprint in the adult advertising arena. According to the appellants, the expansion had two as­pects. First, Backpage engaged in a cam­paign to distract attention from its role in sex trafficking by, for example, meeting on various occasions with hierarchs of the Na­tional Center for Missing and Exploited Children (NCMEC) and making “false and misleading representations” to the NCMEC and law enforcement regarding its efforts to combat sex trafficking. But this campaign, the appellants suggest, was merely a ruse.

The second aspect of Backpage’s expan­sion strategy involved the deliberate structuring of its website to facilitate sex trafficking. The appellants aver that Backpage selectively removed certain postings made in the “Escorts” section (such as postings made by victim support organizations and law enforcement “sting” advertisements) and tailored its posting requirements to make sex trafficking easi­er.2

In addition, the appellants allege that Backpage’s rules and processes governing the content of advertisements are designed to encourage sex trafficking. For exam­ple, Backpage does not require phone number verification and permits the post­ing of phone numbers in alternative for­mats. There is likewise no e-mail verifica­tion, and Backpage provides users with the option to “hide” their e-mail addresses in postings, because Backpage provides mes­sage forwarding services and auto-replies on behalf of the advertiser. Photographs uploaded for use in advertisements are shorn of their metadata, thus removing from scrutiny information such as the date, time, and location the photograph was tak­en. While Backpage’s automated filtering system screens out advertisements con­taining certain prohibited terms, such as “barely legal” and “high school,” a failed attempt to enter one of these terms does not prevent the poster from substituting workarounds, such as “brly legal” or “high sehl.”

The appellants suggest that Backpage profits from having its thumb on the scale in two ways. First, advertisements in the “Adult Entertainment” section are the only ones for which Backpage charges a posting fee. Second, users may pay an additional fee for “Sponsored Ads,” which appear on the right-hand" side of every page of the'“Escorts” section. A “Spon­sored Ad” includes a smaller version of the image from the posted advertisement and information about the location and avail­ability of the advertised individual.

Beginning at age 15, each of the appel­lants was trafficked through advertise­ments posted on Backpage. Jane Doe # 1 was advertised on Backpage during two periods in 2012 and 2013. She estimates that, as a result, she was raped over 1,000 times. Jane Doe # 2 was advertised on Backpage between 2010 and 2012. She estimates that, as a result, she was raped over 900 times. Jane Doe # 3 was adver­tised on Backpage from December of 2013 until some unspecified future date. As a result, she was raped on numerous occa­sions.3 All of the rapes occurred either in Massachusetts or Rhode- Island. Some­times the sex traffickers posted the adver­tisements directly and sometimes they forced the victims to post the advertise­ments.

Typically, each posted advertisement in­cluded images of the particular appellant, usually taken by the traffickers (but adver­tisements for Doe #3. included some pic­tures that she herself had taken). Many of the advertisements embodied challenged practices such as anonymous payment for postings, coded terminology meant to refer to underage girls, and altered telephone numbers.

The appellants filed suit against Back-­page in October of 2014. The. operative pleading is the appellants’ second amended complaint, which limns three sets of claims. The first set consists of claims that Backpage engaged in sex trafficking of minors as defined by the TVPRA and its Massachusetts counterpart, the Massachu­setts Anti-Human Trafficking and Victim Protection Act of 2010 (MATA), Mass. Gen. Laws ch. 265, § 50(a). The second set consists of claims under a Massachu­setts consumer protection statute, which forbids “unfair or deceptive acts or prac­tices in the conduct of any trade or com­merce.” Mass. Gen. Laws ch. 93A, § 2(a). The last set consists of claims alleging abridgements of intellectual property rights.

In due season, Backpage moved to dis­miss the second amended complaint for failure to state claims upon which relief could be granted. See Fed.R.Civ.P. 12(b)(6). Although the appellants vigor­ously opposed the motion, the district court dismissed the action in its entirety. See Doe ex rel. Roe v. Backpage.com, LLC, 104 F.Supp.3d 149, 165 (D.Mass.2015). This timely appeal ensued.

II. ANALYSIS

The appellants, ably represented, have constructed a series of arguments. Those.arguments are buttressed by a le­gion of amici (whose helpful briefs we ap­preciate). We review the district court’s dismissal of the appellants’ complaint for failure to state any actionable claim de novo, taking as true the well-pleaded facts and drawing all reasonable inferences in the appellants’ favor. See Tambone, 597 F.3d at 441. In undertaking this canvass, we are not bound by the district court’s ratiocination but may affirm the dismissal on any ground apparent from the record. See Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir.2011). It is through this prism that we evaluate the appellants’ assevera-­tional array.

A. Trafficking Claims.

The appellants challenge the district court’s conclusion that section 230 of the CDA shields Backpage from liability for a course of conduct that allegedly amounts to participation in sex trafficking. We be­gin our consideration of this challenge with the text of section 230(c), which provides:

(c) Protection for “Good Samaritan” blocking and screening of offensive ma­terial

(1) Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any infor­mation provided by another informa­tion content'provider.

.(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy,.ex­cessively violent, harassing, or oth­erwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information con­tent providers or others the techni­cal means to restrict access to mate­rial described in [subparagraph (A)]. •

47 U.S.C. § 230(c). Congress enacted this statute partially in response to court cases that held internet publishers liable for de­famatory statements posted by third par­ties on message boards maintained by the publishers. See, e.g., Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *1, *5 (N.Y.Sup.Ct. May 24, 1995) (explaining that Prodigy was liable because, unlike some other website opera­tors, it had taken steps to screen or edit content posted on its message board). Section 230(c) limits this sort of liability in two ways. Principally, it shields website operators from being “treated as the pub­lisher or speaker” of material posted by users of the site, 47 U.S.C. § 230(c)(1), which means that “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial , func­tions — such as deciding whether to pub­lish, withdraw, postpone or alter content— are barred,” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir.1997). Related­ly, it allows website operators to engage in blocking and screening of third-party con­tent, free from liability for such good-faith efforts. See 47 U.S.C. § 230(c)(2)(A).

There has been near-universal agree­ment that section 230 should not be con­strued grudgingly. See, e.g., Doe v. My­Space, Inc., 528 F.3d 413, 418 (5th Cir.­2008); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir.­2007); Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321-22 (11th Cir.2006); Cara­fano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir.2003). This preference for broad construction, recognizes that websites that display third-party content may have an infinite number of users gen­erating an enormous amount of potentially harmful content, and holding website oper­ators liable for that content “would have an obvious chilling effect” in light of the difficulty of screening posts for potential issues. Zeran, 129 F.3d at 331. The ob­verse of this proposition is equally salient: Congress sought to encourage websites to make efforts to screen' content without fear of liability. See 47 U.S.C. § 280(b)(3)—(4); Zeran, 129 F.3d at 331; see also Lycos, 478 F.3d at 418-19. Such a hands-off approach is ' fully consistent with Congress’s avowed desire to permit the continued development of the internet with minimal regulatory interference. See 47 U.S.C. § 230(a)(4), (b)(2).

In holding Backpage harmless here, the district court found section 230(c)(1) controlling. See Backpage.com, 104 F.Supp.3d at 154-56. Section 230(c)(1) can be broken down into three component parts. It shields conduct if the defendant (1) “is a ‘provider or user of an, interactive computer service’; (2) the claim is based on ‘information provided by another infor­mation content provider’;, and (3) the claim would treat [the defendant] ‘as the publish­er or speaker’ of that information.” Ly­cos, 478 F.3d at 418 (quoting 47 U.S.C. § 230(c)(1)). The appellants do not allege that Backpage fail's .to satisfy either "of the first ¡two elements.4 Instead, they confine themselves to the argument that their as­serted causes of action do not treat Back-­page as the publisher or speaker of the contents of the advertisements through which they were trafficked. It- is to this argument that we now turn. ■

The-broad construction accorded to sec­tion 230 as a whole has resulted in ■ a capacious conception of what it means to treat a website operator as the publisher or speaker of information provided by a third party.- Courts have recognized that “many causes of action might be premised on the publication or speaking of what one might call ‘information content.’ ” Barnes v. Yahoo!, Inc,, 570 F.3d 1096, 1101 (9th Cir.2009). The' ultimate question, though, does nbt depend on the form of the assert­ed cause of action; rather, it depends on whether the cause of action necessarily requires that the defendant be treated as the publisher or speaker of content provid­ed by another. See id. at 1101-02. Thus, courts have invoked the prophylaxis of sec­tion 230(c)(1) in connection with a Wide variety of causes of action, including hous­ing discrimination, see Chi. Lawyers’ Comm. for Civil Rights Under Law; Inc. v. Craigslist, Inc., 519 F.3d 666, 671-72 (7th Cir.2008), negligence, see Doe, 528 F.3d at 418; Green v. Am. Online (AOL), 318 F.3d 465, 470-71 (3d Cir.2003), and securities fraud and cyberstalking, see Lycos, 478 F.3d at 421-22.

The- appellants have an uphill climb: the TVPRA claims that they assert ap­pear to treat Backpage as the publisher or speaker of the content of the challenged advertisements. After all, the appellants acknowledge in their complaint, that the contents of all of the relevant advertise­ments were provided either by their traf­fickers , or by the appellants themselves (under orders from their traffickers). Since the appellants were trafficked by means of these advertisements, there would be no harm to them but for the content of the postings.

The appellants nonetheless insist that their allegations do not treat Backpage as a publisher or speaker of third-party con­tent. They rest this hypothesis largely on the text of the TVPRA’s civil remedy pro­vision, which provides that victims may bring a civil suit against a perpetrator “or whoever knowingly benefits, financially or by receiving anything of value from partic­ipation in a venture which that person knew or should have known has engaged in an act” of sex trafficking. 18 U.S.C, § 1595(a); see id. § 1591. Characterizing their allegations as describing “an affirma­tive course of conduct” by Backpage dis­tinct from the exercise of the “traditional publishing or editorial functions” protected under the CDA, the appellants contend that this course of conduct amounts to participation in sex trafficking and, thus, can ground liability without treating Back-­page as the publisher or speaker of any of the underlying content. This contention comprises more cry than wool.

We begin with the appellants’ as­sertion that Backpage’s activities do not involve traditional publishing or editorial functions, and are therefore outside the protective carapace of section 230(c)(1). In support, the complaint describes choices that Backpage has made about the posting standards for advertisements — for exam­ple, rules about which terms are permitted or not permitted in a posting, the lack of controls on the display of phone numbers, the option to anonymize e-mail addresses, the stripping of metadata from photo­graphs uploaded to the website, the web­site’s reaction after a forbidden term is entered into an advertisement, and Back-­page’s acceptance of anonymous payments. The appellants submit that these choices are distinguishable from publisher func­tions. We disagree.

As an initial matter, some of the chal­lenged practices — most obviously, the choice of what words or phrases can be displayed on the site — are traditional pub­lisher functions under any coherent defini­tion of the term. See Zeran, 129 F.3d at 330 (describing decisions about “whether to publish, withdraw, postpone or alter content” as “traditional editorial func­tions”). And after careful consideration, we are convinced that the “publisher or speaker” language of section 230(c)(1) ex­tends to the formulation of precisely the sort of website policies and practices that the appellants assail.

Precedent cinches the matter. In Ly-­cos, we considered the argument that the prophylaxis of section 230(c) did not en­compass “decisions regarding the ‘con­struct and operation’” of a defendant’s websites. 478 F.3d at 422. There, the plaintiffs alleged that Lycos permitted users to register under multiple screen names and provided links to “objective fi­nancial information” from a finance-related message board, thus enabling “individuals to spread misinformation more credibly.” Id. at 420. We noted that, at bottom, the plaintiffs were “ultimately alleging that the construct and operation of Lycos’s web sites contributed to the proliferation of misinformation” and held that as long as “the cause of action is one that would treat the service provider as the publisher of a particular posting, immunity applies not only for the service provider’s decisions with respect to that posting, but also for its inherent decisions about how to treat postings generally.” Id. at 422. In short, “Lycos’s decision not to reduce misinfor­mation by changing its web site policies was as much an editorial decision with respect to that misinformation as a deci­sion not to delete a particular posting.” Id.

The case at hand fits comfortably within this construct. Without exception, the ap­pellants’ well-pleaded claims address the structure and operation of the Backpage website, that is, Backpage’s decisions about how to treat postings. Those claims challenge features that are part and parcel of the overall design and operation of the website (such as the lack of phone number verification, the rules about whether a per­son may post after attempting to enter a forbidden term, and the procedure for up­loading photographs). Features such as these, which reflect choices about what content can appear on the website and in what form, are editorial choices that fall within the purview of traditional publisher functions.5

At oral argument in this court, the ap­pellants placed particular emphasis on Backpage’s provision of e-mail anonymiza­tion, forwarding, auto-reply, and storage services to posters. In the last analysis, however, the decision to provide such ser­vices and the parallel decisión not to im­pose the same conditions on messaging services as are applied to “Escorts” section postings are no less publisher choices, enti­tled to the protections of section 230(c)(1).

We add, moreover, that applying section 230(c)(1) to shield Backpage from liability here is congruent with the case law else­where. Relying on that provision, courts have rejected claims that attempt to hold website operators liable for failing to pro­vide sufficient protections to users from harmful content created by others, For instance, where a minor claimed to have been sexually assaulted by someone she met through the defendant’s website and her suit alleged that the website operator “fail[ed] to implement basic safety meas­ures to protect minors,” the Fifth Circuit rejected the suit on the basis that the claims were “merely another,way of claim­ing that [the website operator] was liable for publishing the communications and they speak to [the website operator’s] role as a publisher of online third-party-gener­ated content.” Doe, 528 F.3d at 419-20. Although the appellants try to distinguish Doe by claiming Backpage’s decisions about what measures to implement delib­erately attempt to make sex trafficking easier, this is a distinction without a differ­ence. Whatever Backpage’s motivations, those motivations do not alter the fact that the complaint premises liability on the de­cisions that Backpage is making as a pub­lisher with respect to third-party content.

Nor does the text of the TVPRA’s civil remedy provision change this result. Though a website conceivably might dis­play a degree of involvement sufficient to render its operator both a publisher and a participant, in a sex trafficking venture (say, that the website operator helped to procure the underaged youths who were being trafficked), the facts pleaded in the second amended complaint do not appear to achieve this duality. But even if we assume, for argument’s sake, that Back-­page’s conduct amounts to “participation in a [sex trafficking] venture” — a phrase that no published opinion has yet interpreted— the TVPRA claims as pleaded premise that participation on Backpage’s actions as a publisher or speaker, of third-party con­tent. The strictures of section 230(c) fore­close such suits.6

Contrary to the appellants’ importun-­ings, the decision in Barnes does not de­mand a different outcome. There, the Ninth Circuit concluded that a promissory estoppel claim based on a Yahoo execu­tive’s statements that the company would remove explicit photographs that had been posted online without the consent of the person depicted was not barred by section 230(c)(1). See Barnes, 570 F.3d at 1098-99, 1109. Withal, this promissory estoppel claim did not attempt to treat Yahoo as the publisher or speaker of the photograph’s content but, instead, the claim sought to hold Yahoo liable for its “manifest inten­tion to be legally obligated to do some­thing” (that is, to delete the photographs). Id. at 1107. No comparable promise has been alleged here.

That ends this aspect of the matter. We hold that claims that a website facili­tates illegal conduct through its posting rules necessarily treat the website as a publisher or speaker of content provided by third "parties and, thus, are.precluded by section 230(c)(1). This holding is con­sistent with, and reaffirms, the principle that a website operator’s decisions in structuring its website and posting re­quirements are publisher functions entitled to section 230(c)(1) protection.

In this- case, third-party content is like Banquo’s ghost: it appears as an essential component of each and all of the appel­lants’ TVPRA claims. Because the appel­lants’ claims under the TVPRA necessarily treat Backpage as the publisher or speak­er of content supplied by third parties,-the district court did not err in dismissing those claims.7

In an effort to shift the trajectory of the debate; the appellants try a pair of end runs. First, the appellants call our atten­tion to section 230(c)(2), which provides that decisions made by website operators to block or remove content are protected from- liability as long as they are made in good faith. Building on this foundation, the appellants assert'that the district court relied on Backpage’s descriptions of its efforts to block and screen the postings in the “Escorts” section of its website, and that those descriptions amount to an im­plicit invocation of section 230(c)(2). So, the appellants say, the district court should have allowed discovery into Back-­page’s good faith (or lack of it) in blocking and screening content. The district court’s refusal to allow them to pursue this course, they charge, eviscerates section 230(c)(2) and renders it superfluous.

The appellants start from a faulty prem­ise: we do not read the district court’s opinion as relying on Backpage’s asser­tions about its behavior. That Backpage sought to respond’to allegations of miscon­duct by (among other things) touting its efforts to combat sex trafficking does not, without more, invoke section 230(c)(2) as a defense.

The appellants’ suggestion of superfluity is likewise misplaced. Courts routinely have recognized thát section 230(c)(2) pro­vides a set of independent protections for websites, ■ see, e.g., Barnes, 570 F.3d at 1105; Chi Lawyers’ Comm., 519 F.3d at 670-71; Batzel v. Smith, 333 F.3d 1018, 1030 n. 14 (9th Cir.2003), and nothing about the district court’s analysis is at odds with that conclusion.

Next, the appellants suggest that their TVPRA claims are saved by the op­eration of section 230(e)(1). That provi­sion declares that section 230 should not “be construed to impair the enforcement of ... any ... Federal criminal statute.” The appellants posit that the TVPRA’s civil suit provision is part of the “enforce­ment” of a federal criminal statute under the plain meaning of that term and, thus, outside the protections afforded by section 230(c)(1). This argument, though creative, does not withstand scrutiny.

We start with the uncontrover­sial premise that, where feasible, “a stat­ute should be construed in a way that conforms to the plain meaning of its text.” In re Jarvis, 53 F.3d 416, 419 (1st Cir.­1995). The plain-language reading of sec­tion 230(e)(l)’s reference to “the enforce­ment of ... any ... Federal criminal stat­ute” dictates a meaning opposite to that ascribed by the appellants: such a reading excludes civil suits. See Backpage.com, 104 F.Supp.3d at 159 (pointing out that “the common definition of the term ‘crimi­nal,’ as well as its use in the context of Section 230(e)(1), specifically excludes and is distinguished from civil claims” (quoting Doe v. Bates, No. 5:05-CV-91-DF-CMC, 2006 WL 3813758, at *21 (E.D.Tex. Dec. 27, 2006))). Other traditional tools of stat­utory construction reinforce this conclu­sion. Although titles or captions may not be used to contradict a statute’s text,' they can be useful'to resolve' textual ambigui­ties. See Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947); Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4, 9 (1st Cir.1991). Here, the subsection’s title, “[n]o effect on criminal law,”» quite clearly indicates that the provision is limit­ed to criminal prosecutions.

It is equally telling that where Congress wanted to include both civil and criminal remedies in CDA provisions, it did so through broader language. For instance, section 230(e)(4) states that the protections of section 230 should not “be construed to limit the application of the Electronic Communications Privacy Act of 1986,” a statute that contains both criminal penalties and civil1 remedies. See 18 U.S.C. §§ 2511, 2520. Preserving the “ap­plication” of this Act contrasts with Con­gress’s significantly narrower word choice in safeguarding the “enforcement” of fed­eral criminal statutes. The normal pre­sumption is that the employment of differ­ent words within the same statutory scheme is deliberate, so the terms ordi­narily should be given differing meanings. See Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n. 9, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004).

This holding is entirely in keeping with the policies animating, section 230(e)(1). Congress made pellucid that it sought “to ensure vigorous enforcement of Federal criminal laws to deter and punish” illicit activities online, 47 U.S.C. § 230(b)(5); and this policy coexists comfortably with Congress’s choice “not to defer harmful online speech through the ... route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages,” Lycos, 478 F.3d at 418 (omission in" original) (quoting Zeran, 129 F.3d at 330-31). Seen in this light, the distinctions between civil and criminal actions — including the disparities in the standard of proof and the availabili­ty of prosecutorial discretion — reflect a legislative judgment that it is best to avoid the potential chilling effects that private civil actions might have on internet free speech.

To say more about these attempted end runs would be pointless. They are futile, and do not cast the slightest doubt on our conclusion that the district court appropri­ately dismissed the appellants’ sex traffick­ing claims as barred by section 230(c)(1).

B. Chapter 93A Claims.

We turn next to the appellants’ state-law unfair trade practices claims. A Massa­chusetts statute, familiarly known as Chapter 93A, creates a private right of action in favor of any individual “who has been injured by another person’s use or employment” of unfair or deceptive busi­ness practices. See Mass. Gen. Laws ch. 93A, § 9(1). The appellants’ Chapter 93A claims (as framed on appeal) target mis­representations allegedly made by Back-­page to law enforcement and the NCMEC regarding Backpage’s efforts at self-regu­lation. The district court jettisoned these claims, concluding that the causal chain alleged by the appellants was “too specula­tive to fall as a matter of law within the penumbra of reasonable] foreseeability.” Backpage.com, 104 F.Supp.3d at 162.

As this ruling hinges on the plausibility of the appellants’ allegations of causation, we first rehearse the plausibility standard. It is, of course, apodictic that a plaintiff must supply “a short and plain statement of the claim showing that [she] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although this requirement does not call for the pleading of exquisite factual detail, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Evaluating the plausibility of a complaint is a two-step process. First, “the court must separate the complaint’s factual allegations (which must be accepted as true) from its conclusory legal allega­tions (which need not be credited).” Mor­ales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.2012). Second, the court must determine whether the remaining facts al­low it “to draw the reasonable inference that the defendant is liable for the miscon­duct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). In carrying out this evaluation, the court must view the claim as a whole, instead of demanding “a one-to-one relationship between any single allegation and a necessary element of the cause of action.” Rodríguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 55 (1st Cir.­2013).

With this standard in mind, we proceed to the appellants’ assignment of error. To prevail on a Chapter 93A claim of this sort, the “plaintiff must prove cau­sation — that is, the plaintiff is required to prove that the defendant’s unfair or decep­tive act caused an adverse consequence or loss.” Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486, 961 N.E.2d 1067, 1076 (2012). This requirement entails showing both “a causal connection between the de­ception and the loss and that the loss was foreseeable as a result of the deception.” Smith v. Jenkins, 732 F.3d 51, 71 (1st Cir.2013) (quoting Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 952 N.E.2d 908, 912 (2011)). In other words, the plaintiff must lay the groundwork for findings of both actual and proximate cau­sation. If an examination of the claim leads to the conclusion that it fails plausi­bly to allege a causal chain sufficient to ground an entitlement to relief, that claim is susceptible to dismissal under Rule 12(b)(6). . See A.G. ex rel. Maddox v. El­sevier, Inc., 732, F.3d 77, 82 & n. 2 (1st Cir.2013).

Here, the second amended complaint at­tempts to forge the causal chain as follows: Backpage made a series of disingenuous representations to law enforcement offi­cers and the NCMEC regarding its sup­posed commitment to combating sex traf­ficking, including representations about technical changes to its website and its efforts to screen and monitor postings; Backpage neither kept these commitments nor made the technical changes that had been discussed; instead, Backpage en­gaged in a series of pretextual actions to generate the appearance of combating sex trafficking (though it knew that these ac­tions would not actually eliminate sex traf­ficking from the website); this amalgam of misrepresentations and deceptive practices “minimized and delayed” any real scrutiny of what Backpage was actually doing, thus allowing Backpage to gain a dominant market share in the online advertising of sex trafficking; and this sequence of events harmed the appellants, by increas­ing their risk of being trafficked.

This causal chain is shot through with conjecture: it pyramids speculative infer­ence upon speculative inference. This rampant guesswork extends to the effect of the alleged misrepresentations on an indeterminate number of third parties, the real impact of Backpage’s behavior on the overall marketplace for sex trafficking, and the odds that the appellants would not have been victimized had Backpage been more forthright.

When all is said, and done, it is apparent that the attenuated causal, chain proposed by the appellants is forged en­tirely out of surmise.' Put another way, the causation element is backed only by “the type of conclusory statements that need not be credited at the Rule 12(b)(6) stage.” Maddox, 732 F.3d at 80. Charges hinting at Machiavellian manipulation (such as the charge that Backpage’s “com­munications with NCMEC were simply an effort to create a diversion as Back-­page.com solidified its market position” or the charge that Backpage’s posting review program “appears to be merely superfi­cial”) cannot serve as surrogates for well-­pleadéd facts.

To be sure, the complaint does plead a few hard facts. For example, it indicates that some meetings occurred involving Backpage and the NCMEC. It also indi­cates that Backpage made some efforts (albeit not the ones that the NCMEC rec­ommended) to address sex trafficking. But beyond these scanty assertions, the complaint does not offer factual support for its attenuated causal analysis.

In an effort to plug this gaping hole, the appellants argue' that' in a Chapter 93A case the plausibility of causation should be tested at the pleading stage not by looking at facts but, rather, by employing “com­mon economic sense.” Bos. Cab Dispatch, Inc. v. Uber Techs., Inc., No. 13-10769, 2015 WL 314131, at *4 (D.Mass. Jan. 26, 2015); accord Katin v. Nat’l Real Estate Info. Servs., Inc., No. 07-10882, 2009 WL 929554, at *7, *10 (D.Mass. Mar. 31, 2009). Yet, facts are the linchpin of plausibility; and the cases that the appellants cite are inapposite. Those cases involve competi­tors suing each other pursuant to section 11 of Chapter 93A. This distinction is sig­nificant because although causation in sec­tion 11 cases between competitors turns on the decisions of third parties (customers), the causal chain between the unfair act and the harm to the plaintiff is much shorter and more direct than the chain that the appellants so laboriously attempt to construct.

The short of it is that the pertinent allegations in the second amended com­plaint are insufficient “to remove the possi­bility of relief from the realm of mere conjecture.” Tambone, 597 F.3d at 442. It follows inexorably that the district court did not err in dismissing the appellants’ Chapter 93A claims.8

C. Intellectual Property Claims.

This brings us to the appellants’ intellec­tual property claims. Section 230 provides that “[n]othing in this section shall be con­strued to limit or expand any law pertain­ing to intellectual property.” 47 U.S.C. § 230(e)(2). We assume, without deciding, that the appellants’ remaining claims come within the compass of this exception.9

1. Unauthorized Use of Pic­tures of a Person. All of the appellants brought claims under state laws (Massa­chusetts and/or Rhode Island) guarding against the unauthorized use of a person’s picture. See Mass. Gen. -Laws ch. 214, § 3A; R.I. Gen. Laws § 9-1-28, These nearly identical statutes, reprinted in rele­vant part .in the margin,10 confer private rights of action upon individuals whose images are used for commercial purposes without their consent. The appellants in­sist that Backpage, by garnering advertis­ing revenues from their traffickers, profit­ed from the unauthorized use of their photographs. This fusillade is wide of the mark: the statutes in question impose lia­bility only upon persons or entities who deliberately use another’s image for -com­mercial gain. As we explain below, Back-­page (on the facts alleged here) is not such an entity.

Neither the Massachusetts Supreme Ju­dicial Court (SJC) nor the . Rhode Island Supreme Court has confronted the exact scenario that is presented here., Our task, then, is to make an informed determina­tion of how each- court would rule if it faced- the question, taking into account analogous state decisions, cases from other jurisdictions, learned treatises, and rele­vant policy rationales!' See Andrew Robin­son Int’l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51-52 (1st Cir.2008). Here, the tea leaves are easy to read.

The SJC has articulated the key point in the following way: “the crucial distinction .,. must be between situations in which the defendant makes an incidental use of the plaintiffs name, portrait or picture and those in which the defendant uses the, plaintiffs name, portrait or picture deliber­ately to exploit its value for advertising or trade, purposes.” Tropeano v. Atl. Month­ly Co., 379 Mass. 745, 400 N.E.2d 847, 850 (1980). Exploitation for advertising or trade purposes requires that the use of the image be “for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or likeness.” Id. (quoting Nelson v. Me. Times, 373 A.2d 1221, 1224 (Me.1977)). So, too, the nearly identical Rhode Island statute requires a showing that by using the image “the defendant commercially ex­ploited [the plaintiff] without his permission.” Leddy v. Narragansett Television, L.P., 843 A.2d 481, 490 (R.I.2004); accord Mendonsa v. Time Inc., 678 F.Supp. 967, 971 (D.R.I.1988).

The appellants argue that the use of their images cannot be written off as inci­dental because them pictures were “the centerpieces of commercial advertise­ments.” But this argument misappre­hends both the case law and the rationale that animates the underlying right. Tro-­peano exemplifies the point. That case involved the publication of the plaintiffs image to illustrate a magazine article in which she was not even mentioned. See 400 N.E.2d at 848. The SJC concluded that this was an incidental use of the im­age, notwithstanding that the article and accompanying picture could be said to ben­efit the publisher. See id. at 851. The fact that the publisher was a for-profit business did “not by itself transform the incidental publication of the plaintiffs pic­ture into an appropriation for advertising or trade purposes.” Id.

In our view, Tropeano establishes that even a use leading to some profit for the publisher is not a use for advertising or trade purposes unless the use is designed to “appropriate] to the defendant’s benefit the commercial or other values associated with the name, or likeness.” Id. at 850 (quoting Nelson, 373 A.2d at 1224). That is the rule in Massachusetts, and we are confident that essentially the same rule prevails in Rhode Island.

Here, there is no basis for an inference that Backpage appropriated the commer­cial value of the appellants’ images. Al­though Backpage does profit from the sale of advertisements, it is not the entity that benefits from the misappropriation. A publisher like Backpage is “merely the conduit through which the advertising and publicity matter of customers” is conveyed, Cabaniss v. Hipsley, 114 Ga.App. 367, 151 S.E.2d 496, 506 (1966), and the party who actually benefits from the misappropria­tion is the advertiser. Matters might be different if Backpage had used the pic­tures to advertise its own' services, see id., but the appellants proffer no such claim.

Basic policy considerations reinforce this result. There would be obviously del­eterious consequences to a rule placing advertising media, such as newspapers, television stations, or websites, at risk of liability every time they sell an advertise­ment to a party who engages in misappro­priation of another person’s likeness. Giv­en this verity, it is hardly surprising that the appellants have identified no case in which a publisher of an advertisement fur­nished by a third party has been held liable for a misappropriation present with­in it. The proper target of any suit for damages in such a situation must be the advertiser who increases his own business through the misappropriation (in this case, the traffickers).11

We need not tarry. On this understand­ing, we uphold the district court’s dismiss­al of the appellants’ claims under the aforementioned state statutes.

2. Copyright, The last leg of our jour­ney takes us to a singular claim of copy­right infringement. Shortly after the in­stitution of suit, Doe #3 registered a copyright in one of the photographs used by her traffickers. In the second amend­ed complaint, she included a claim for copyright infringement. The court below dismissed this claim, reasoning that it identified no redressable injury. See Backpage.com, 104 F.Supp.3d at 165. Doe # 3 challenges this ruling.

Assuming (without deciding) that Backpage could be held liable for copy­right infringement, the scope of Doe # 3’s potential recovery is limited by the fact that she did not register her copyright until December of 2014 — after the instant action had been filed. By then, Backpage was no longer displaying the copyrighted image. Given the timing of these events, Doe #3 cannot recover either statutory damages or attorneys’ fees under the Copyright Act. See 17 U.S.C. § 412; John­son v. Gordon, 409 F.3d 12, 20 (1st Cir.­2005). Any recovery would be restricted to compensatory damages under 17 U.S.C. § 504(b), which permits a successful suitor to recover “the actual damages suffered by ... her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.”

The prospect of such a recov­ery, however, is purely theoretical: noth­ing in the complaint raises a plausible in­ference that Doe #3 can recover any damages, or that discovery would reveal such an entitlement. See Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (stating that factual allegations must at least “raise a reasonable expectation that discovery will reveal evidence” to suffice as plausible). A showing of actual damages requires a plaintiff to prove “that the infringement was the cause of [her] loss of revenue.” Data Gen. Corp. v. Grumman Sys. Sup­port Corp., 36 F.3d 1147, 1170 (1st Cir.­1994). Such a loss is typically measured by assessing the diminution in a copyright­ed work’s market value (say, by calculat­ing lost licensing fees). See Bruce v. Weekly World News, Inc., 310 F.3d 25, 28-­29 (1st Cir.2002); Data Gen., 36 F.3d at 1170. No facts set forth in the second amended complaint suggest that the mar­ket value of Doe #3’s image has been affected in any way by the alleged in­fringement, and Doe # 3 points to nothing that might plausibly support such an infer­ence.

By the same token, nothing in the com­plaint plausibly suggests a basis for a find­ing that Doe #3 would be entitled to profits attributable to the infringement. The closest that the complaint comes is an optimistic assertion that because photo­graphs “enhance the effectiveness of ad­vertisements,” Backpage necessarily reaps a financial benefit from these images (in­cluding, presumably, Doe # 3’s photo­graph). But a generalized assertion that a publisher/infringer profits from providing customers with the option to display photo­graphs in advertisements, standing alone, cannot plausibly be said to link the display of a particular image to some discrete portion of the publisher/infringer’s profits. Cf. Mackie v. Rieser, 296 F.3d 909, 914-16 (9th Cir.2002) (concluding, at summary judgment, that the effect of including a photograph in an advertising brochure was too speculative to make out a triable issue on advertiser’s profits attributable to in­fringement). In short, the link that Doe # 3 attempts to fashion between the copy­righted photograph and Backpage’s reve­nues is wholly speculative and, thus, does not cross the plausibility threshold. After all, “[f]actual allegations must be enough to raise a right to relief above the specula­tive level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

In a last ditch effort to bell the cat, Doe # 3 contends that the district court erred in failing to determine whether she was entitled to injunctive relief under 17 U.S.C. § 502(a), which permits such relief “to pre­vent or restrain infringement of a copy­right.” She says, in effect, that Backpage may still possess the copyrighted photo­graph and that, therefore, she remains at risk of future infringement. We reject this contention.

To begin, the mere fact of past infringement does not entitle a plaintiff to permanent injunctive relief: the plaintiff must also show “a substantial likelihood of infringement in the future.” Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1555 (10th Cir.1996); see 5 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.06[B][1][a] (2015). Nothing in the complaint suggests that there is any substantial likelihood of future infringement by Backpage with re­spect to the copyrighted photograph. The known facts strongly suggest that no such risk exists: the photograph was posted-by a third party who no longer has any sway over Doe # 3, and Backpage is not alleged to post material or create advertisements entirely of its own accord. Thus, any fears of future infringement would appear to be unfounded.

Viewing the complaint as a whole, see Twombly, 550 U.S. at 569 n. 14, 127 S.Ct. 1955, we conclude that the distinctive facts alleged here simply do not suffice to ground a finding that Doe # 3 is plausibly entitled to any relief on her copyright claim. Consequently, we discern no error in the district court’s dismissal of this claim.

III. CONCLUSION

As a final matter, we add a coda. The appellants’ core argument is that Back-­page has tailored its website to make sex trafficking easier. Aided by the amici, the appellants have made a persuasive case for that proposition. But Congress did not sound an uncertain trumpet when it enact­ed the CDA, and it chose to grant broad protections to internet publishers. Show­ing that a website operates through a mer­etricious business model is not enough to strip away those protections. If the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation.

We need go no further. For the reasons elucidated above, the judgment of the dis­trict court is affirmed. All parties shall bear their own costs.

Affirmed.

1

. The appellants sued Backpage.com, LLC, Camarillo Holdings, LLC, and New Times Media, LLC. For ease in exposition, we refer to these three affiliated companies, collective­ly, as "Backpage.”

2

. The appellants note that (among other things) the process of posting an advertise­ment in the "Escorts” section does not re­quire the poster to provide either identifying information or the subject of the advertise­ment. And even though the website does require that posters verify that they are 18 years of age or older to post in that section, entering an age below 18 on the first (or any successive) attempt does not block a poster from entering a different age on a subsequent attempt. Backpage also allows users to pay posting fees anonymously through prepaid credit cards or digital currencies.

3

. Once the parents of Doe # 3 located some of the Backpage advertisements featuring their daughter, théy demanded that the adver­tisements be removed from the website. A week later (after at least one other entreaty to Backpage), the postings remained on the web­site.

4

. Certain amici advance an argument fors­worn by the appellants in the. district court: that Backpage’s activities amount to creating the content of the advertisements. It is; how­ever, clear beyond hope of contradiction that amici cannot “interject into a case issues which the litigants, whatever their reasons might be, have chosen to ignore.” Lane v. First Nat’l Bank of Bos., 871 F.2d 166, 175 (1st Cir.1989).

5

. The appellants argue that a concurring opinion in J.S. v. Village Voice Media Hold­ings, L.L.C., 184 Wash.2d 95, 359 P.3d 714, 718-24 (2015) (en banc) (Wiggins, J., concur­ring), points to a different conclusion. But our reasoning in Lycos — which the J.S. con-­cúrrente failed to address — defeats this argu­ment.

6

. To be sure, the complaint contains a few allegations that do not involve the publication of third-party content. Yet those allegations, treated in detail in Part 11(B) infra, rely on sententious rhetoric rather than well-pleaded facts. Thus, they cannot suffice to alter our conclusion here.

7

. Although the parties do not separately parse the text of the MATA, those claims' fail for essentially the same reasons: they treat Back-­page as the publisher or speaker of content provided by third parties. - As a result, the MATA — at least in this application — is neces- . sarily inconsistent with the protections pro­vided by section 230(c)(1) and,- therefore, preempted. See 47 U.S.C. § 230(e)(3).

8

. For the sake of completeness, we note that the court below held, in the alternative, that the appellants' Chapter 93A claims were barred by section ¿30(c)(1). See Back­page.com, 104 F.Supp.3d at 162-63. We ex­press no opinion on this alternative holding.

9

. The application of the exemption to the ap­pellants’ state law claims for the unautho­rized use of pictures is not free from doubt. At least one court of appeals has suggested that state law intellectual property claims are not covered by this exemption. See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118-­19, 1119 n, 5 (9th Cir.2007); but cf. Lycos, 478 F.3d at 422-23, 423 n, 7 (applying sec­tion 230(e)(2) to a claim under state trade­mark law, albeit without detailed analysis). To make a muddled matter even murkier, Backpage argues that the unauthorized use of pictures claims do not involve intellectual property but, rather, stem from privacy rights protected by tort law. We need not reach either of these issues.

10

. Mass. Gen. Laws ch. 214, § 3A provides in relevant part that:

Any person whose name, portrait or picture is used within the commonwealth for adver­tising purposes or for the purposes of trade without his written consent may bring a civil action ... against the person so using his name, portrait or picture, to prevent and restrain the use thereof; and may re­cover damages for any injuries sustained by reason of such use.

R.I. Gen. Laws § 9-l-28(a) provides, as perti­nent here, that:

Any person whose name, portrait, or pic­ture is used within the state for commercial purposes without his or her written consent may bring an. action ... against the person so using his or her name, portrait, or pic­ture to prevent and restrain the use thereof, and may recover damages for any injuries sustained-by reason of such use.

To the modest extent that. the wording of these statutes differs, neither the appellants nor Backpage suggests that the differences affect our analysis in any way. We therefore treat the statutes interchangeably.

11

. This is precisely the situation reflected in the earliest right of privacy cases, see, e.g., Henry v. Cherry & Webb, 30 R.I. 13, 73 A. 97 (1909), and the state statutes in this case are designed to codify liability for that sort of commercial conduct, see Mendonsa, 678 F.Supp. at 969-70; Tropeano, 400 N.E.2d at 850-51.

WOODHULL FREEDOM FOUNDATION, HUMAN RIGHTS WATCH, ERIC KOSZYK, JESSE MALEY, also known as ALEX ANDREWS & INTERNET ARCHIVE, Plaintiffs, represented by Robert Corn-Revere, DAVIS WRIGHT TREMAINE LLP, Ronald G. London, DAVIS WRIGHT TREMAINE LLP, David Allen Greene, ELECTRONIC FRONTIER FOUNDATION, pro hac vice & Lawrence G. Walters, WALTERS LAW GROUP, pro hac vice.

UNITED STATES OF AMERICA & JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the United States, Defendants, represented by Jason Todd Cohen, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA.

MEMORANDUM OPINION

September 24th 2018 [Dkt. ## 5, 16]

RICHARD J. LEON, District Judge.

On June 28, 2018, plaintiffs filed their complaint challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, 132 Stat. 1253 (2018) ("FOSTA" or "the Act"). See Compl. ¶ 1 [Dkt. # 1]. The same day, plaintiffs filed a motion for preliminary injunction, asking this Court to enjoin the enforcement of the Act pending the resolution of this litigation. See Motion for Preliminary Injunction 1 ("Mot. for Prelim. Inj.") [Dkt. # 5]. Plaintiffs, "advocacy and human rights organizations, two individuals and the leading archival collection of Internet content," raise a bevy of claims. Id. at 2. They assert that FOSTA violates the First and Fifth Amendments to the U.S. Constitution, as well as the Ex Post Facto clause of Article I, Section 9. See Compl. ¶¶ 126-74. From plaintiffs' perspective, FOSTA offends the Constitution in a variety of ways: it is overbroad, vague, impermissibly targets speech based on viewpoint and content, pares back immunity from certain state law claims, erodes the scienter requirement, and wrongly criminalizes conduct that was lawful at the time committed. See id. Defendants, United States and Attorney General Jefferson B. Sessions (hereinafter "defendants" or "the Government"), disagree. They argue that plaintiffs lack standing to challenge the Act's constitutionality and that, in all respects, FOSTA passes constitutional muster on the merits. For the reasons discussed below, I agree with the defendants and will DENY plaintiffs' Motion for Preliminary Injunction [Dkt. # 51, and GRANT defendants' Motion to Dismiss ("Mot. to Dismiss") [Dkt. 416].

I. Statutory Scheme

The Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, 132 Stat. 1253 (2018) ("FOSTA" or "the Act") passed the House of Representatives and the Senate on February 27, 2018 and March 21, 2018, respectively. President Donald J. Trump signed the bill into law on April 11, 2018, and FOSTA took immediate effect. 132 Stat. 1253, § 4(b).

FOSTA adds one section to the U.S. Code, and amends three others. The Act implements the "sense of Congress" that the Communications Decency Act of 1996, codified in 47 U.S.C. § 230, "was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims." 132 Stat. 1253, § 2(1). Indeed, "websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion." Id. § 2(2). For this reason, the Act continues, "clarification of [Section 230] is warranted" in order to ensure that that section does not shield "such websites" from appropriate liability. Id. § 2(3).

Section 2421A is the centerpiece of FOSTA and this case. There, the Act creates a federal criminal offense for owning, managing, or operating "an interactive computer service . . . with the intent to promote or facilitate the prostitution of another person," or attempting or conspiring to do so. 18 U.S.C. § 2421A(a). This offense is punishable by fine or up to ten years' imprisonment. Id. A defendant facing this charge may avail himself of an affirmative defense, namely that "the promotion or facilitation of prostitution is legal in the jurisdiction where the promotion or facilitation was targeted." Id. § 2421A(e). The burden for establishing the affirmative defense lies with the defendant, who must establish this fact by a preponderance of the evidence. Id.

Section 242.1A further provides for an "aggravated" version of the same offense, punishable by fine or up to twenty-five years' in prison. See id. § 2421A(b). The aggravated offense layers additional elements on top of the Section 2421A(a) base offense. Thus, Section 2421A(b) imposes criminal liability on anyone who owns, manages, or operates an interactive computer service with the intent to promote or facilitate the prostitution of another person and either (1) "promotes or facilitates the prostitution of five or more persons," see id. § 2421A(b)(i), or (2) "acts in reckless disregard of the fact that such conduct contributed to sex trafficking[] in violation of 18 U.S.C. § 1591(a)," see id. § 2421A(b)(ii). Section 1591(a), a preexisting provision of the criminal law, prohibits sex trafficking. See id.§ 1591(a).^[1] Under Section 2421A(c), victims of violations of Section 2421A(b) may bring civil suits in federal court to "recover damages and reasonable attorneys fees." Id. § 2421A(c). FOSTA also directs the court to order restitution for any violation of subsection (b)(2).

Next, FOSTA amends 47 U.S.C. § 230, the "safe harbor" of the Communications Decency Act of 1996 ("CDA"). Section 230 has two key functions. First, it immunizes interactive computer services from criminal and civil liability for content created by third parties. See 47 U.S.C. § 230(c)(1) (providing that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider"); id. § 230(e)(3) (preempting conflicting state and local law); see also Bennett v. Google, LLC,882 F.3d 1163, 1165 (D.C. Cir. 2018) ("The intent of the [Communications Decency Act] is thus to promote rather than chill internet speech."); see also Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398, 406-07 (6th Cir. 2014)("Section 230 marks a departure from the common-law rule that allocates liability to publishers or distributors of tortious material written or prepared by others."). At the same time, however, Section 230 "encourage[s] service providers to self-regulate the dissemination of offensive material over their services." Bennett, 882 F.3d at 1165 (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997)): With these two grants of immunity, Section 230 "incentivize[s] companies to neither restrict content nor bury their heads in the sand in order to avoid liability." Id.

FOSTA clarifies the scope of Section 230's preemptive effect. The Act states that "nothing in" Section 230(c)(1) — the provision immunizing providers of interactive computer services from liability for the speech of third parties — "shall be construed to impair or limit" three categories of civil claims and criminal prosecutions. Id. § 230(e)(5). First, FOSTA makes clear that Section 230 does not preclude civil claims by victims against perpetrators and persons who "receiv[ed] anything of value from participation in a [sex trafficking] venture" under 18 U.S.C. § 1595 if such participation was "knowing" as defined in 18 U.S.C. § 1591. Id. § 230(e)(5)(A). Second, Section 230 does not foreclose state criminal prosecution if the conduct underlying the charge would have violated 18 U.S.C. § 1591. Id. § 230(e)(5)(B). And third, Section 230 does not preclude state criminal prosecution if the conduct would constitute a violation of 18 U.S.C. § 2421A, the newly-created FOSTA criminal offense. Id. § 230(e)(5)(C). These amendments to Section 230 "shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such date of enactment."^[2] 132 Stat. 1253, § 4(b).

Next, FOSTA adds a definition to 18 U.S.C. § 1591, the provision of the code that prohibits sex trafficking. There, FOSTA clarifies that the term "participation in a venture" means "knowingly assisting, supporting, or facilitating" sex trafficking. Id.§ 1591(e)(4). The term "participation in a venture" appears elsewhere in the same section, but had previously been undefined. See id. § 1591(a)(2) (criminalizing the knowing "participation in a venture" to cause sex trafficking of an adult by "force, fraud, or coercion" or of a minor).

Fourth, and finally, FOSTA amends Section 1595 of the same title to authorize state attorneys general to bring civil actions in parens patriae on behalf of residents of the state who have been "threatened or adversely affected by any person who violates" 18 U.S.C. § 1591. See 18 U.S.C. § 1595(d). In layman's terms, Section 1595 allows state attorneys general to step into the shoes of victims and bring civil suits on their behalf. Id.

II. Parties

The Woodhull Freedom Foundation ("Woodhull") is an advocacy and lobbying organization focused on "affirming and protecting the fundamental human right to sexual freedom." Declaration of Ricci Levy in Support of Motion for Preliminary Injunction ("R. Levy Decl.") ¶ 3 [Dkt. # 5-21. It provides "support for the health, safety, and protection of sex workers, which include adult film performers, live webcam models, sexual wellness instructors, exotic dancers, escorts, and prostitutes." Id. ¶ 5. Woodhull "strongly opposes sex trafficking or sexual assault in any form, while advocating for the right to engage in consensual sexual activity." Id. The organization maintains a website, id. ¶ 8, blog, id. ¶ 9, and social media accounts, id. ¶ 12.

Woodhull's "signature event" is the annual Sexual Freedom Summit, held in the Washington, D.C. area. See id. ¶¶ 16-26. The Summit "brings together hundreds of educators, therapists, legal and medical professionals," id. ¶ 6, and features "workshops devoted to issues impacting sex workers, such as harm reductions, disability, age, health, and personal safety," id. ¶ 17. The most recent Summit took place while this litigation was pending, from August 2-5, 2018 in Alexandria, Virginia.^[3] As part of the Summit, Woodhull represented that it intended to use social media, such as Facebook Live and Twitter, to reach individuals unable to attend in person. Id. ¶ 24. Livestreamed events included titles such as "Criminalization of Sex Work is a Human Rights Violation and a Labor Rights Concern," "FOSTA! How Congress Broke the Internet," and "Sexual Freedom in the Age of Trump." See https://www.sexualfreedomsummit.org/. Woodhull's President, Ricci Levy, represents that the organization has "a well founded fear" of prosecution under FOSTA based on "its efforts to promote information about sex workers on the Internet." Levy Decl. ¶¶ 37-38.^[4]

The second named plaintiff, Human Rights Watch ("HRW"), monitors potential violations of human rights around the world. Declaration of Dinah PoKempner ("PoKempner Decl.") ¶¶ 2-3 [Dkt. # 5-3]. As part of this mission, HRW does research and advocacy on behalf of sex workers, including in favor of decriminalization. Id. ¶¶ 2-5. body of work includes reporting on such issues as "police searches of women for condoms as evidence of prostitution" in the United States. Id. ¶ 5. Nevertheless, like Woodhull, HRW is fiercely opposed to "[f]orced prostitution and trafficking." Id. ¶ 7. And, like Woodhull, HRW details its "concern[]" about potential FOSTA liability "[d]espite the[] clear distinctions in [its] policy" between advocacy for decriminalization of consensual prostitution and opposition to forced prostitution and sex trafficking. Id. ¶ 8.^[5]

Plaintiffs also include two individuals. The first, Eric Koszyk, is a licensed massage therapist in Portland, Oregon, and the sole proprietor of Soothing Spirit Massage, a massage parlor that he has run for over a decade. See Declaration of Eric Koszyk (Koszyk Decl.) ¶¶ 1-2, 5 [Dkt. # 5-4]. He uses Craiglist ads to attract over 90% of his customers, and finds Craigslist to be the "easiest and best way to reach clients" for his massage business. Id. ¶¶ 6, 9. Koszyk placed his ads in the "Therapeutic Services" section of Craigslist, and specified that he was "a man providing massage therapy" and that his "services were professional and therapeutic." Id. ¶ 7. Following passage of the Act, Craigslist has taken down Koszyk's ads, and has refused to allow him to post new ads. Id. ¶¶ 22-23. As a result, Koszyk represents that he "no longer [has] a place on the website to advertise [his] services as a licensed massage therapist." Id. ¶ 23.^[6]

Jesse Maley is a self-described advocate for "sex workers' health, safety, and human rights." Declaration of Jesse Maley (Maley Decl.) ¶ 1 [Dkt. # 5-5]. In her professional life, Maley goes by the name "Alex Andrews." Id. ¶ 2.^[7] Maley co-founded and continues to manage a website entitled ratethatrescue.org ("Rate That Rescue"), a "sex worker-led, public, free community effort" intended to educate sex workers about organizations used by sex workers. Id. ¶ 13. The term "Rescue" refers to so-called rescue organizations, which seek to "assist or rescue sex workers." Id. ¶ 14. Some rescue organizations, at least in Maley's view, do more harm than good by failing to distinguish between consensual and coerced sex work and "treat[ing] all sex workers as victims." Id. ¶ 16.

With this in mind, Maley co-founded Rate That Rescue in order to inform and educate sex workers about the nature and mission of various rescue organizations. Since its founding in 2015, the website has expanded to provide information on all manner of organizations "unrelated to . . . sex work," but nevertheless relied on by sex workers. Id. ¶ 17. Those include organizations that address substance abuse, health care, and child care. Id. ¶¶ 17, 22. Listings of organizations specify basic information — a brief description of the organization, contact information, the type of service offered — and include ratings on a 1 to 5 scale by users, as well as comments by those users. Id. ¶¶ 21-22.

Rate That Rescue relies on ratings and reviews added by unpaid, volunteer third parties. See id. ¶ 25. It does so on the thinking that sex workers who have received services from organizations will be in the best position to rate their effectiveness. Id. ¶ 18. Users, acting by name or anonymously, can create listings for particular organizations and post reviews on existing listings. Id. ¶ 19. Rate That Rescue also allows the rated organizations to modify existing listings, and respond to users' comments. Id. ¶ 20.^[8] In her declaration, Maley relays that, with FOSTA on the books, she is "extremely worried that Rate That Rescue is potentially criminally liable for the speech of [its] users." Id. ¶ 26. Maley's declaration discusses this concern at length, reciting various legal theories under which Rate That Rescue could be liable under FOSTA. See id. ¶¶ 24-31.

The Internet Archive ("the Archive") is an organization that archives internet webpages. `Declaration of Brewster Kahle (Kahle Decl.) ¶¶ 4-7 [Dkt. # 5-6]. The Archive's mission is to preserve digital materials in order to prevent them from "disappearing into the past." Id. ¶ 4. It has a function that "crawl[s]" across webpages, mapping and storing those pages in order to preserve them for future use. Id. ¶ 7. The Archive collects and stores 80 million pages per day, and includes 330 billion web pages from 1996 to the present. Id. ¶ 7-8. It therefore comes as no surprise that "[t]he vast majority of the material in the Internet Archive's collection is authored by third parties." Id. ¶ 4. In addition, third parties can make their own contributions to this site, supplementing the Archive's collection by uploading stored webpages from the past. Id. ¶ 13. The general public uploads roughly 20,000 items per day to the Archive. Id. Although the Archive does "at times" remove content, it has "no practical ability to evaluate the legality of any significant portion of the third-party content that it archives and makes available." Id. ¶ 14. The Archive's founder, Brewster Kahle, avers that he is "afraid" that FOSTA will result in criminal or civil liability for the Archive. Id. ¶ 21.

III. Procedural History

Plaintiffs filed this complaint on June 28, 2018. See Compl. 1 [Dkt. # 1]. The same day, they moved for a preliminary injunction pursuant to Fed. R. Civ. P. 65(a). SeeMot. for Prelim. Inj. 1 [Dkt. # 5]. This Court set a hearing on July 19, 2018 for oral argument on the Motion. See 7/5/2018 Min. Order. Prior to oral argument, the Court twice extended briefing deadlines to afford the parties more time to develop their arguments. See 7/5/2018 Min. Order; 7/10/2018 Min. Order. On July 12, 2018, defendants filed their Opposition to Plaintiffs' Motion for Preliminary Injunction [Dkt. # 15] and Motion to Dismiss ("Mot. to Dismiss") [Dkt. # 16], and, on July 17, 2018, plaintiffs filed a Reply in support of their Motion for Preliminary Injunction ("Pls.' Reply") [Dkt. # 17] and, on July 29, 2018, an Opposition to defendants' Motion to Dismiss [Dkt. # 19].

At the hearing, plaintiffs requested a ruling on their motion for preliminary injunction prior to Woodhull's Sexual Freedom Summit, scheduled for August 2-5, 2018. I advised the parties that, due to plaintiffs' decision to wait to challenge FOSTA until months after its passage, as well as the novelty of the issues presented in plaintiffs' complaint, this Court would not be in a position to rule and issue a lengthy opinion within the two weeks remaining prior to the Summit. 7/19/2018 Tr. 13:25-15:9 [Dkt. # 23]. Nevertheless, I pledged to issue an opinion as soon as practicable, and gave the parties the opportunity to supplement their briefing within seven days of the publication of the hearing transcript. Id. 41:5-8, 42:16-19. The briefing was finalized on August 6, 2018. See Defs.' Reply in Support of Motion to Dismiss and Supp. Mot. Hearing Br. [Dkt. # 21]; Supp. Br. in Support of Pls.' Mot. for Prelim. Inj. [Dkt. # 22].

IV. Standard of Review

Plaintiffs ask this Court to issue a preliminary injunction blocking the enforcement of FOSTA. The test for this "extraordinary remedy" is well known. Pursuing America's Greatness v. Fed. Election Comm'n, 831 F.3d 500, 505 (D.C. Cir. 2016)(quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). In order to receive a preliminary injunction, plaintiffs must make a "clear showing" that four factors, taken together, warrant relief. Id. These factors are "[1] likely success on the merits, [2] likely irreparable harm in the absence of preliminary relief, [3] a balance of the equities in [their] favor, and [4] accord with the public interest." Id.(citing Winter, 555 U.S. at 20); see also Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009).

Defendants, for their part, assert that the case should be dismissed for want of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). In particular, defendants assert that plaintiffs have failed to satisfy the requirements of Article III standing to sue. It is, of course, black-letter law that the jurisdictional requirements of Article III must be present before this Court may proceed to the merits. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). Indeed, "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).

Plaintiffs bear the burden of establishing, by preponderance of the evidence, that this Court has subject-matter jurisdiction over their claims. See Spoken Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). At the pleading stage, this means that plaintiffs must "clearly . . . allege facts demonstrating" each element of Article III standing. Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). When reviewing a Rule 12(b)(1) motion to dismiss on jurisdictional grounds, "the Court must accept as true all of the factual allegations contained in the complaint." U.S. ex rel. Digital Healthcare, Inc. v. Affiliated Computer Servs., 778 F. Supp. 2d 37, 43 (D.D.C. 2011).,That said, I need not "accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations." Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001).

Defendants also move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), on the grounds that plaintiffs have failed to state a claim upon which relief can be granted. As with the Rule 12(b)(1) motion, for purposes of Rule 12(b)(6), this Court must "assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged" without crediting unsupported inferences from those factual allegations, or legal conclusions couched as facts. See Am. Nat'l Ins. Co. v. Fed. Deposit Ins. Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (citation and quotation marks omitted); Rann, 154 F. Supp. 2d at 64.^[9]

V. Discussion

Article III limits the jurisdiction of the federal courts to the adjudication of "Cases" and "Controversies" — that is, "cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process." Steel Co., 523 U.S. at 95. "`One element of the case-or-controversy requirement' is that plaintiffs `must establish that they have standing to sue.'" Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). Standing `serves to prevent the judicial process from being used to usurp the powers of the political branches,' and confines the federal courts to a properly judicial role." Spoken, 136 S. Ct. at 1547 (quoting Clapper, 568 U.S. at 408).^[10] Given these separation of powers concerns, the Supreme Court has emphasized that the "standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Clapper, 568 U.S. at 408 (quoting Raines, 521 U.S. at 819-20).

The "irreducible constitutional minimum" of Article III standing contains three elements. Spoken, 136 S. Ct. at 1547 (quoting Lujan, 504 U.S. at 560). The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id. (citing Lujan, 504 U.S. at 560-61).^[11] Of these elements, the "[f]irst and foremost" is the injury in fact requirement. Id. (quoting Steel Co., 523 U.S. at 103).

As the Supreme Court has explained, in order to establish injury in fact, "a plaintiff must show that he or she suffered `an invasion of a legally protected interest' that is `concrete and particularized' and `actual or imminent, not conjectural or hypothetical.'" Id. at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Imminence, the element most relevant here, "is concededly a somewhat elastic concept." Clapper, 568 U.S. at 409 (quoting Lujan, 504 U.S. at 565 n.2). Nevertheless, imminence "cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes — that the injury is certainly impending." Id. (quoting Lujan, 504 U.S. at 565 n.2) (emphasis in original). Thus, mere allegations of "possible future injury" cannot suffice for purposes of the injury in fact requirement. Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 1990)) (allegations in original); see also Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) ("[W]e have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent.").

The concept of imminence has been particularly important in the context of pre-enforcement challenges. The Supreme Court has held that "[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation, or enforcement." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). A credible threat of prosecution exists when the challenged law "is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution." Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 392 (1988). Thus, fear of prosecution cannot be "imaginary or wholly speculative," Babbitt, 442 U.S. at 302, and "[a]llegations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of.specific future harm," Laird v. Tatum, 408 U.S. 1, 13-14 (1972).

Our Circuit Court has stated that the question whether "a threat of prosecution adequate to satisfy the requirements of justiciability [exists] in any particular preenforcement challenge is a factual and case-specific one." Navegar, Inc. v. United States, 103 F.3d 994, 999 (D.C. Cir. 1997). As such, I must look to the "full panoply of circumstances relevant to the plaintiffs' claim of an imminent threat of prosecution." Id. Those factors "may include the history of enforcement of the challenged statute to like facts [and] any threats of enforcement." Johnson v. Dist. of Colum, 71 F. Supp. 3d 155, 160 (D.D.C. 2014); see also Seegars v. Gonzales,396 F.3d 1248, 1252 (D.C. Cir. 2005) (summarizing analysis of pre-enforcement standing); Blum v. Holder, 744 F.3d 790, 798 (1st Cir.), cert. denied, 135 S. Ct. 477 (2014) (applying Clapper to First Amendment claim).^[12]

Plaintiffs assert that they face a credible threat of prosecution under FOSTA. Reply at 2. They claim that the statute's broad sweep places them in criminal and civil jeopardy for their educational and advocacy efforts concerning "sex work." See id.The mere threat of prosecution, plaintiffs maintain, itself works an injury by chilling their speech. See id. at 2-3. The Government for its part, contends that plaintiffs' conduct, as described in the declarations accompanying plaintiffs' Motion for Preliminary Injunction, would not fall within FOSTA's ambit. As such, it contends that plaintiffs lack standing to challenge the Act's constitutionality, because, without a credible threat of prosecution, they have suffered no cognizable injury. For the following reasons, I agree with the Government.

Plaintiffs have the burden of establishing that their conduct is arguably "proscribed by [the challenged] statute," Susan B. Anthony List, 134 S. Ct. at 2342. As such, I must compare the terms of FOSTA with plaintiffs' actual and proposed conduct in order to ascertain whether plaintiffs have adequately alleged standing. Although plaintiffs' declarations each contain pre-packaged assertions as to the legality of their proposed conduct, those legal conclusions are not binding on this Court. See Doe v. Rumsfeld, 683 F.3d 390, 391 (D.C. Cir. 2012). Therefore, the following is a plaintiff-by-plaintiff review of the alleged conduct and claimed bases for prosecution.

A. Woodhull Freedom Foundation

What is it that plaintiffs plan to do? Woodhull's Motion for Preliminary Injunction cited its annual SeXual Freedom Summit, scheduled to take place in Virginia from August 2-5, as the primary basis for standing. That event has now taken place. The Summit, the Court is told, featured workshops on topics such as "Sex and Disability: Shifting the Focus to Disabled Sex Workers" and "Capitalism is not Consensual: Sex Workers and the Shaky Foundations of Consent." Levy Decl. ¶ 22. As part of the summit, Woodhull used social media, such as Facebook Live and Twitter, to reach individuals unable to attend in person. Id. ¶¶ 24-26. Livestreamed events included titles such as "Criminalization of Sex Work is a Human Rights Violation and a Labor Rights Concern," "FOSTA! How Congress Broke the Internet," and "Sexual Freedom in the Age of Trump." haps://www.sexualfreedomsummit.org/.

Woodhull does not assert that, by livestreaming or promoting its workshops, or publishing biographies and contact information of sex workers, it intends to facilitate acts of prostitution by those sex workers. Compl. ¶¶ 74, 80-81. Nevertheless, Woodhull believes that federal, state, or local authorities could wield "the broad, vague, and undefined prohibitions contained in FOSTA" against it for having sponsored the Sexual Freedom Summit. Reply at 3. That is so because, under Woodhull's reading of the statute, FOSTA does not "suggest discernable limits for what might constitute promotion or facilitation of prostitution or trafficking." Mot. for Prelim. Inj. at 20.

Woodhull is particularly concerned with Section 2421A's use of the terms "promoting" and "facilitating." See, e.g., 7/19/2018 Hr'g 6:16-22 (stating that Woodhull "provide[s] workshops for sex workers, again, to provide safety information, to advocate on their behalf. . . . [T]hey are concerned that that would be considered by some to he promotion or facilitation of prostitution, in violation of the law."); see also id. 7:3-5 (complaining that Woodhull has been "hampered in promoting" the Summit due to FOSTA). FOSTA does not define those terms, and plaintiffs believe that they could sweep broadly — so broadly, in fact, that they could place any activity that arguably "make[s] prostitution easier" within the sweep of the statute. Mot. for Prelim. Inj. at 21. Indeed, plaintiffs assert that Section 2421A can be construed to criminalize any conduct that "make[s] prostitution easier" or more likely. Id.

Unfortunately for Woodhull, plaintiffs marshal precious little authority in support of this construction. First, plaintiffs cite one case from the Northern District of Illinois and two Seventh Circuit opinions. They do so in support of the proposition that merely providing a platform for speech of someone who might commit illegal acts "does not satisfy the ordinary understanding of culpable assistance to a wrongdoer." Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003); see also In re Aimster Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003); Dart v. Craigslist, 665 F. Supp. 2d 961, 967 (N.D. Ill. 2009). That line of cases, however, only reaffirms the Government's position ! That is so because those opinions reaffirm that, for platforms said to promote or facilitate particular illegal acts, the law imposes a heightened mens rea requirement. See GTE Corp., 347 F.3d at 659 (stating that the activity of the internet service provider "does not satisfy the ordinary understanding of culpable assistance to a wrongdoer, which requires a desire to promote the wrongful venture's success" (emphasis added)). Indeed, Section 2421A contains just such a heightened mens rea requirement, demanding that the Government prove intent — rather than knowledge, or even recklessness — to promote or facilitate. 18 U.S.C. § 2421A(a),^[13]

Then, in a footnote, plaintiffs cite the Oxford English Dictionary's definition of "promote" as "to advance or actively support," see Oxford English Dictionary (3d ed. 2007), and Black's Law Dictionary's definition of "to facilitate" as "to make the occurrence of (something) less difficult," see Black's Law Dictionary (10th ed. 2014). See Mot. for Prelim. Inj. at 24 n.9. Those definitions, however, do not shed light on Section 2421A as a whole. Instead, they strip "promote" and "facilitate" from the rest of Section 2421A(a), ignoring both the mens rea requirement and the language "prostitution of another person," which denotes specific unlawful acts. Plaintiffs' preferred method of statutory interpretation turns a blind eye to "the specific context in which that language is used, and the broader context of the statute as a whole." Nat'l Veterans Legal Servs. Program v. United States, 291 F. Supp. 3d 123, 138-39 (D.D.C. 2018) (quoting United States v. Wilson, 290 F.3d 347, 352-53 (D.C. Cir. 2002)).

Woodhull's construction of Section 2421A is flawed for additional reasons. First, Section 2421A mirrors an existing federal criminal law, the "Travel Act," 18 U.S.C. § 1952. The history of enforcement of the Travel Act gives a sense both of the meaning of the plain text of Section 2421A, and of the likelihood of enforcement for specific conduct. The Travel Act bars the use of "any facility in interstate or foreign commerce" (such as the Internet) with the intent to "promote, manage, establish, carry on, or facilitate the promotion, management, establishing, or carrying on, of any unlawful activity," including, "prostitution offenses in violation of the laws of the State in which they are committed or of the United States." 18 U.S.C. § 1952(a)(3), (b).

Woodhull does not present the Court with any example of prosecution under the Travel Act that tracks its own theory of FOSTA's vast sweep. In United States v. Bennett, the Ninth Circuit affirmed the district court's jury instruction, in a prosecution under the Travel Act, that ``to promote' or `facilitate the promotion of any illegal activity means to do an act that would cause the activity to be accomplished or to assist in the activity." 95 F.3d 1158 (9th Cir. 1996). This definition, with language like "cause the activity to be accomplished," or "assist in the activity," reflects the close causal connection required for prosecution under the Travel Act. Not surprisingly, recent prosecutions reflect the close connection between "promoting" and "facilitating" and the underlying, particular criminal act. See, e.g., United Slates v. Reiner, 500 F.3d 10, 12-19 (1st Cir. 2007); United States v. Seals, 5:10-CR-50127 (TLB), 2014 WL 3847916, at *7-8 (W.D. Ark. Aug. 5, 2014).

To be sure, plaintiffs attempt to distinguish Section 2421A from the Travel Act. They maintain that the Travel Act, unlike Section 2421A, proscribes specific acts of prostitution as defined in state law. Those state law violations are thus a predicate to a Travel Act offense. By contrast, plaintiffs say, FOSTA criminalizes "anything that promotes or facilitates prostitution, and not a specific crime." 7/19/2018 Hr'g Tr. 16:10-13. This is particularly problematic because prostitution "is an area where there has been significant advocacy, both by government entities and by private citizens." Id. at 16:14-16. As plaintiffs see it, that advocacy places them in FOSTA's crosshairs.

In pressing this argument, however, plaintiffs ignore key textual indications that make clear that FOSTA targets specific acts of illegal prostitution — not the abstract topic of prostitution or sex work. See United States v. Williams, 553 U.S. 285, 294 (2008); cf. South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 (1986) ("It is an elementary canon of construction that a statute should be interpreted so as not to render one part inoperative." (citation omitted)). First, the text of Section 2421A criminalizes the conduct of owning, operating, or managing an interactive computer service with the intent to promote or facilitate "the prostitution of another person." 18 U.S.C. § 2421A(a) (emphasis added). The reference to "the prostitution of another person" is plainly calculated to ensnare only specific unlawful acts with respect to a particular individual, not the broad subject-matter of prostitution. This reading of Section 2421A(a) is confirmed by Section 2421A(e), which states that the fact that prostitution is legal "in the jurisdiction where the promotion or facilitation was targeted" is an affirmative defense. Id. § 2421A(e). By making reference to the laws of specific "jurisdiction[s]," Section 2421A(e)'s affirmative defense tethers subsection (a)'s prohibition on acts intended to promote or facilitate "the prostitution of another person" to specific crimes much in the way that the Travel Act does. Put differently, the Government may prosecute under Section 2421A only for acts that are otherwise illegal under existing federal or state law.

Plaintiffs also insist that, by virtue of the language "own, manage, or operate an interactive computer service," Section 2421A impermissibly targets speech. I disagree. It is black-letter law that speech that "is intended to induce or commence illegal activities" is not protected by the First Amendment. Williams, 553 U.S. at 297; see also Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations,413 U.S. 376, 388-89 (1973) ("We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes."). As the Supreme Court has explained, "offers to give or requests to receive what it is unlawful to possess have no social value" and thus are not entitled to the protections of the First Amendment. Id. Indeed, the statute upheld against an over-breadth challenge in Williams — which imposed a criminal penalty for knowingly "advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing]" child pornography — bears resemblance to FOSTA's prohibition on "promot[ing]" or "facilitate[ing]" unlawful prostitution. 553 U.S. at 289-90.

And that is to say nothing of Section 2421A's mens rea requirement, which only further narrows that provision's scope. Section 2421A will require the Government to show not simply that the defendant was aware of a potential result of the criminal offense, but instead that the defendant intended to "explicitly further[]" a specified unlawful act. See United States v. Brown, 186 F.3d 661, 670 (5th Cir. 1999). Woodhull's Sexual Freedom Summit shares, at most, a "weak . . . nexus" with illegal prostitution, and does not approach the high bar required under Section 2421A's mens rea standard. Id. All told, Woodhull has failed to meet its burden in persuading the Court that it faces any credible threat of prosecution. Nor has it identified any other cognizable injury in fact necessary for standing to pursue this case.^[14]

B. Human Rights Watch

The second plaintiff, Human Rights Watch, shares similar concerns to those of Woodhull. HRW advocates for sex worker rights and safety across the globe, and documents "abuses against sex workers in the United States, Lebanon, and South Africa." PoKempner Decl. ¶ 5. In addition, HRW has reported on "police searches of women for condoms as evidence of prostitution in four U.S. cities." Id. This advocacy and reporting, FIRW asserts, make sex work "safer and thus easier." Reply at 5. For instance, HRW's reporting on policing methods "forewarn sex workers about methods police use to discover and shut down sex work, thus making it easier for sex workers to avoid detection by law enforcement." Id. But, again, the record contains no indication that HRW, through its advocacy and educational work, intends to promote or facilitate specific acts of prostitution in violation of state or federal law. Without that mens rea, there is no credible threat of prosecution, and thus no standing to bring this pre-enforcement challenge.

C. Jesse Maley a/k/a Alex Andrews

Next, Jesse Maley, a/k/a Alex Andrews, the creator and operator of ratethatrescue.org ("Rate That Rescue"), fears prosecution for her efforts to use that website to "make sex work safer and thus easier." Id. at 4-5 & n.5. As I noted earlier, Rate That Rescue aggregates reviews and ratings by third parties. Those third parties provide, as counsel explained at oral argument, "information about bad dates" and "dangerous situations" in order to "keep women safe." 7/19/2018 Hr'g 5:17-24. In addition, Maley states that Rate That Rescue maintains a forum for information on organizations that, although not directly related to sex work as such, provide services used by sex workers, such as "housing, childcare, counseling, [and] education." Maley Decl. ¶ 22.

Under Maley's reasoning, because providing housing or childcare services to sex workers "make[s] Sex work easier," Rate That Rescue could be said to promote or facilitate prostitution. Reply at 4-5. For this reason, Maley fears that FOSTA's amendments to Section 230 — which clarify that immunity does not extend to conduct made unlawful by Section 2421A — could expose her to prosecution for the speech of third parties on Rate That Rescue. See id. As a precaution, Maley has "put on hold her acquisition of an indevelopment reporting application" for mobile devices, although she continues to maintain the website itself. Id. at 4. Her concerns, however, are unwarranted.

Put simply," Maley has failed to show that FOSTA's Section 230 amendments expose her to a credible threat of prosecution. That is so because Maley, on the current record, lacks the mens rea to violate any of the provisions specified in Section 230(e)(5). As I noted earlier, FOSTA amends Section 230 by adding Section 230(e)(5), which clarifies that Section 230(b) does not preclude liability under certain provisions of the U.S. Code. Section 230(e) mentions three provisions in particular: state law prosecutions for conduct banned by the newly-created Section 2421A; state law prosecutions for conduct banned by 18 U.S.C. § 1591, which forbids the sex trafficking of adults by "force, fraud, or coercion" and of minors categorically; and 18 U.S.C. § 1595, which supplies a civil remedy for victims of the criminal conduct described in Section 1591.

In managing Rate That Rescue, Maley cannot possibly be said to act "with the intent to promote or facilitate the prostitution of another person" in violation of Section 2421A. Maley's declaration concedes as much, repeatedly expressing concern that law enforcement could determine that "the user-generated content on Rate That Rescue promotes or facilitates prostitution, id. ¶ 29; see also id. ¶ 30. But those formulations lack the critical inens rea element of the Section 2421A offense. Indeed, Maley herself does not even assert that law enforcement could credibly contend that, in managing Rate That Rescue, she acts "with the intent to promote or facilitate" the prostitution of another person. 18 U.S.C. § 2421A(a). Of course, the mere promotion or facilitation of prostitution is not enough: Maley must intend that her conduct produce the specific result. Id. Maley, not surprisingly, does not represent that she has any such intent in managing Rate That Rescue, and the record before this Court presents no basis for inferring that mens rea. Cf. id. ¶ 18 (explaining Rate That Rescue's goal of helping "sex workers get information about . . . organizations based on the experiences of other sex workers"), ¶¶ 19-24 (summarizing Rate that Rescue posting and editing process), ¶ 25 (stating that Rate That Rescue has no revenue," "is run by volunteers," and is "unable to actively or comprehensively review, edit, or moderate user-generated content").

Nor do Sections 1591 and 1595 furnish a basis for holding Maley criminally or civilly liable, at least based on the record before this Court. The record is barren of any evidence suggesting that Rate That Rescue has ever hosted content assisting the sex trafficking of minors, such that Andrews could be liable for "knowingly" participating in a venture that "recruits, entices, harbors, transports, provides, obtains, advertises, maintains, or solicits by any means a person . . . knowing . . . [1] that means of force . . . will be used to cause the person to engage in a commercial sex act, or [2] that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act." 18 U.S.C. § 1591; see id. § 1595 (providing civil cause of action for victims of conduct unlawful pursuant to 18 U.S.C. § 1591).

D. Eric Koszyk

Next, Eric Koszyk, a licensed therapist, maintains that he has standing to sue because Craigslist eliminated its Therapeutic Services section "as a direct response to FOSTA." Reply at 6. Koszyk represents that he cannot operate his business without Craigslist. That injury traces to FOSTA's enactment, and can be redressed by a ruling invalidating the Act and "leading" Craiglist to re-open its Therapeutic Services webpage. Reply at 6-7; Compl. ¶ 101; D'Amato Decl. ¶ 10.

Unfortunately for Koszyk, he cannot establish redressability under the relevant precedents. That Is so because Koszyk has not established that a victory "will likely alleviate the particularized injury alleged." West v. Lynch, 845 F.3d 1228, 1235 (D.C. Cir. 2017). It is well established that a plaintiff lacks standing when the "redress for its injury depends entirely on the occurrence of some other, future event made no more likely by its victory in court." Teton Historic Aviation Found. v. U.S. Dep't of Defense, 785 F.3d 719, 726 (D.C. Cir. 2015). When, as here, a third party "can exercise `broad and legitimate discretion the courts cannot presume either to control or to predict,' a court is generally unable to redress the alleged injury and, accordingly, standing is found wanting." Nyambal v. Mnuchin, 245 F. Supp. 3d 217, 224 (D.D.C. 2017) (citation omitted); see also Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 42-43 (1976).

E. The Internet Archive

Finally, the Internet Archive "intentionally stores and displays a vast amount of both historical website data and third-party content that it has no `practical ability to evaluate the legality of.'" Reply at 6 (quoting Kahle Decl. ¶ 14). Although the Internet Archive represents that it does not intend to promote sex trafficking or prostitution, it believes that the Section 230 amendments — and the ambiguity of their scope — may expose it to liability. Once again, however, there are no facts in the record supporting an inference of the mens rea standard necessary to peel back Section 230's protections. The Internet Archive's practice of sweeping up vast amounts of content from the web for indefinite storage, Kahle Decl. ¶ 7-8, and its attested practical inability to review the legality of that third-party content, id. ¶ 14, mean that that entity simply cannot meet the stringent mens rea standard required for liability under Sections 2421A, 1591, or 1595.

CONCLUSION

Thus, for all the above reasons, plaintiffs have each failed to adequately allege standing. As such, this Court lacks subject matter jurisdiction over their claims, Fed. R. Civ. P. 12(h)(3), and must GRANT defendants' Motion to Dismiss [Dkt. # 16] and DENY as moot plaintiffs' Motion for Preliminary Injunction [Dkt. # 5]. A separate order consistent with this opinion will be issued this day.

[1] Because sex trafficking of minors and sex trafficking "by force, fraud, or coercion" are unlawful in the United States, see 18 U.S.C. § 1591, the fact that prostitution is legal in the jurisdiction where the promotion or facilitation is targeted is not an affirmative defense as to subsection (b)(2). See id. § 2421 A(e).

[2] As FOSTA worked its way through the legislative process, the Department of Justice wrote to Rep. Bob Goodlatte, one of the Act's sponsors. See 164 Cong. Rec. H 1 297 (daily ed. Feb. 27, 2018). The letter began by raising some prudential concerns about the necessity of FOSTA and its effectiveness as a law enforcement tool. After making these policy-based complaints, the DOJ expressed concern that the retroactive application of FOSTA's amendment of Section 230 ran afoul of the Ex Post Facto Clause of the U.S. Constitution. In particular, the DOJ wrote, "insofar as [FOSTA] would `impose[] a punishment for an act which, was not punishable at the time it was committed' or `impose[] additional punishment to that then prescribed,'" it would offend the Ex Post Facto clause. Id. (quoting Cummings v. Missouri, 4 Wall. 277, 325-26 (1867)).

[3] As discussed below, plaintiffs requested a ruling from this Court on the motion for preliminary injunction prior to the Summit. Nevertheless, the Summit took place and, so far as the Court is aware, no prosecutions or civil suits have ensued against Woodhull for its sponsorship of the Summit.

[4] Woodhull's President, Ricci Levy, avers that the organization has taken precautionary steps to avoid FOSTA liability. These prophylactic steps included refraining from publishing articles on the Woodhull website concerning FOSTA and its effect on sex workers. Levy Decl. ¶ 28. Those planned articles and blog posts would have advocated against the enforcement of FOSTA, and "educated [sex workers] about their rights, risks, and options under the new legal environment." Id. In addition, Woodhull initially decided to self-censor the promotion of workshops related to sex workers at the Summit, although it eventually reversed this position and advertised for those events on its website and by way of social media. Id. ¶¶ 32-33, 36.

[5] HRW also reports that "it is concerned that social media platforms and websites that host, disseminate, or allow users to spread [its] reports and advocacy materials" may be affected by Section 2421 A. PoKempner Decl. ¶ 9.

[6] Koszyk states in his declaration that "other licensed and certified massage therapists experienced similar problems with their advertisements on Craiglist." Koszyk Decl. ¶ 26.

[7] In addition to her work for Rate That Rescue, Maley is the treasurer and a member of the board of directors of the Sex Workers Outreach Project USA ("SWOP USA"), the founder of the Orlando chapter of SWOP, and the founder of "SWOP Behind Bars." Id. ¶¶ 3, 7-8. SWOP USA is a "national social justice network" that advocates for the decriminalization of sex work; it operates a national hotline and has local chapters. Id. ¶ 3-6. SWOP Behind Bars has a more narrow focus, offering support to incarcerated sex workers by way of a support line, an electronic newsletter, and a re-entry guide for those leaving prison. Id. ¶¶ 8-10. Although SWOP is not a party to this case, Maley represents that SWOP has chosen not to purchase a mobile application out of concern for liability under FOSTA. Id. ¶¶ 32-39.

[8] Maley's declaration records a 1993 conviction for "aggravated promotion of prostitution in violation of Texas lave;" based on her operation of an escort service in San Antonio. Id. ¶ 11. The court imposed ten years' probation; that probation period was terminated in 2001. Id. Maley represents that she "no longer operate[s] the escort service," and has not since her conviction. Id.

[9] Some cases suggest a discrepancy in the standard of review between Rule 12(b)(1) and Rule 12(b)(6) motions, with the former requiring more searching scrutiny on the part of the Court than the latter. See, e.g., Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C. 2001)("[P]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(6)(6) motion for failure to state a claim."). Because plaintiffs fail adequately to allege Article III standing to sue, I need not determine what daylight, if any, exists between the 12(b)(1) and 12(b)(6) standards.

[10] Article III standing also helps to ensure that the plaintiff maintains "a `personal stake in the outcome of the controversy.'" Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Warth, 422 U.S. at 498). For this reason, in order to show standing, plaintiffs must "`allege[] such a personal stake in the outcome of the controversy' as to warrant [their] invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on [their] behalf." Warth, 422 U.S. at 498-99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

[11] There is some confusion as to whether the Court may fold the Article Ill standing inquiry, in the context of a preliminary injunction, into its assessment of the likelihood of success on the merits. See, e.g., Kingman Park Civic Ass'n v. Gray, 956 F. Supp. 2d 230, 241 (D.D.C. 2013) (analyzing standing as part of the "likelihood of success on the merits" prong to the preliminary injunction test). Article III standing, however, is a component of subject-matter jurisdiction; as such, it does not go to the merits, but to the very authority this Court ha.s to entertain the case before it. See Steel Co., 523 U.S. at 89-90. For this reason, I will address the question of Article III standing to sue before considering the four-factor preliminary injunction test.

[12] To be sure, I. "cannot construe a criminal statute on the assumption that the Government will `use it responsibly.'" McDonnell v. United Stales, 136 S. Ct. 2355, 2372-73 (2016) (quoting United States v. Stevens, 559 U.S. 460, 480 (2010)). As explained below, however, the Government presents a strong textual case, along with a persuasive body of evidence concerning prosecution under an analogous statute, in support of its reading of FOSTA. Those sources are the basis for this Court's holding — not the representations of the Government as to its intended exercise of prosecutorial discretion.

[13] Plaintiffs attempt to make much of the fact that Section 2421A(b)'s aggravated offense punishes conduct based on a scienter of recklessness. But the subsection (b) aggravated offense requires bothintent as to the promotion or facilitation of particular acts of prostitution, as well as recklessness with respect to whether that conduct constitutes sex trafficking as defined in 18 U.S.C. § 1591. Thus, it cannot be said that the aggravated offense punishes conduct solely on the basis of a mens rea of recklessness.

[14] In arguing that Section 2421A sweeps broadly, plaintiffs lean on statements made in legislative history. But it is beyond dispute that legislative history is useful only when the text itself is ambiguous. In this case, my "inquiry ceases" because "the statutory language is unambiguous and the statutory scheme is coherent and consistelit." Sebelius v. Cloer, 569 U.S. 369, 380 (2013) (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)).