by Barbara Bartlett, RN, JD, Legal Aid of NorthWest Texas
with Sharon Hernandez
Content Warning: This article discusses sex trafficking and sexual assault, which could be upsetting to some readers. Please use discretion.
Despite some positive movement in the federal criminal arena discussing online sex trafficking and big tech platforms, Houston litigator Annie McAdams is not waiting for the criminal justice system to act. As the lead litigator in Jane Doe v. Facebook, a child sex trafficking case set in Harris County (case 2018-69816), she believes civil justice can effectuate changes to protect Texas’ children more quickly than that of the criminal justice system.
McAdams also doesn’t believe that legislative efforts will result in timely changes in preventing online child sex trafficking. To explain her concerns about relegating online sex trafficking to the legislative branch, McAdams related a story from early in her litigation efforts against big tech. According to McAdams, a name-brand technology company’s lawyer approached her and proposed a compromise to avoid litigation. The big tech lawyer empathized with McAdams’ concerns about rampant online child sex trafficking. However, she then suggested to McAdams that Congress was the proper venue for a problem of this magnitude.
McAdams responded, “How old is your son? Ten? Are you surely going to wait for Congress to figure this out? I’m not comfortable doing that or waiting for that to happen.”
Punctuating her resolve, McAdams added, “This is exactly what civil justice is for.”
This landmark Facebook trial is McAdams’ foray into meting out this civil justice. The case centers on Jane Doe, a Texas woman trafficked for sex as a young teen. Doe’s introduction to human trafficking began when her trafficker approached her through Facebook. Because she was a cautious teen, Doe at first rebuffed the trafficker’s grooming efforts. But the trafficker was persistent and gained her trust through relentless advances over the span of a year. Later, when the teenager posted about a minor fight she had with her mom, the trafficker was ready to swoop in and console her. The trafficker picked her up in his car. Doe explained to McAdams that she thought the man would take her on a short drive and return home. But instead, the trafficker drove Doe to a motel. He locked her in a room. He removed her clothing. He made threats. And to her horror, within two hours of her Facebook post about her fight with her mom, the trafficker had men lined up at the hotel to rape her.
The first rape was Doe’s first sexual experience.
Of particular concern to McAdams is the fact that Facebook does not verify the identity of its users. A 13-year-old girl may unwittingly accept the friend request of a male 34-year-old child molester posing as a girl of the same age. In addition, McAdams is concerned about the lack of geographical limitations to help deter sex trafficking grooming across state lines. For example, a child predator in Atlanta would be unable to contact a child in Houston with geographical limitations in place.
At first, it was challenging for McAdams to explain Facebook’s responsibility for Jane Doe’s predator. The solution, according to McAdams, was found in the intersection of Facebook’s oft-stated position that it was a product, and well-established Texas products liability law. When determining there was a nexus between Facebook and Texas law, McAdams looked to Facebook’s mission statement.
“Facebook’s mission statement relates that they are a technology company that builds products to connect people and the SEC filings reference them as products 274 times,” McAdams explained. “And like any product, Facebook has a duty to ensure that their product is used in a safe manner.”
According to McAdams, the calculus in determining that Facebook made a product was proven not only through Facebook’s admission, but via the actual experience of users. Through a proprietary algorithm, Facebook creates a one-of-a-kind individualized experience; no two users’ experiences are exactly the same.
McAdams expanded, “Facebook has built a product that uses proprietary algorithms to be able to target individual interests as well as make connections. And the heart of our case is that those proprietary algorithms are not being used in a safe manner.”
Other liability analysis for the Facebook case is found in a specially designed, though rarely tested, Texas human trafficking law passed in 2009. Through this law, Texas took the lead among states in passing legislation to address human trafficking. Chapter 98 of the Texas Civil Practices and Remedies Code helps define direct liability for an entity for human trafficking and states: “A defendant who engages in the trafficking of persons or who intentionally or knowingly benefits from participating in a venture that traffics another person is liable to the person trafficked, as provided by this chapter, for damages arising from the trafficking of that person by the defendant or venture.”
However, understanding how Chapter 98 applied to big tech’s relationship to online sex trafficking, versus human trafficking through a motel or truck stop, was “one of the first things we had to overcome that kept me up at night,” according to McAdams.
“What does ‘knowingly’ mean and what does ‘venture’ mean?” McAdams posited.
Fortunately for McAdams, the venture question was answered in 2018 when Congress passed the federal “The Stop Enabling Sex Traffickers Act” (SESTA) and “Allow States and Victims to Fight Online Sex Trafficking Act” (FOSTA). FOSTA-SESTA amended the Communications Decency Act and allowed that a venture could be defined as mere facilitation. “If the facilitation of human trafficking by an entity in Texas [occurs] it makes you liable to the individual trafficked,” McAdams explained.
McAdams reflected on the evolution of her litigation against online sex trafficking: “If you had asked me in 2017 if I were ready to sue Mark Zuckerberg and Facebook, I would have said ‘absolutely not!’ At that point, Facebook was still everybody’s darling; it was pre-Zuckerberg testimony in 2018. We knew it was undeniable that we were going that direction, but weren’t prepared in 2017 to do so. But I will tell you, in the summer of 2017, because we couldn’t deny this string that went through every one of these victims, we started to build the case against big tech.”
Despite the challenges in breaking a new litigation case, McAdams has no regrets. “Sex trafficking is one of the most abhorrent, outrageous, and out-of-control abuses of women that I’ve ever seen,” she said. “I dedicate my practice and my firm for these victims and these survivors to be stood up for and to speak truth to power.”
For more about the case, see Annie McAdams’ interview Q&As: