https://www.techdirt.com/articles/20180329/23024539528/court-shows-sesta-is-not-needed-says-backpage-can-lose-cda-230-protections-if-it-helped-create-illegal-content.shtml

So, in the lead up to Congress' vote on FOSTA/SESTA, we pointed out that a court in Boston was likely on the verge of ruling that Backpage was not protected by CDA 230, because of actions the site had taken. Considering that the publicly stated rationale by nearly everyone supporting FOSTA/SESTA was that it was needed to get around Backpage's CDA 230 protections, we wondered why Congress couldn't wait to see how the court ruled. Yesterday, the Judge indeed ruled against a motion to dismiss in the case of one of the plaintiffs (there were three in the case), saying that enough evidence had been presented to get around CDA 230 for the time being. The key issue: whether or not Backpage directly changed the content, making it the content creator, rather than just the service provider. Backpage has insisted that it didn't make any changes (that a user did), but the court finds that there's enough evidence to reject the motion to dismiss, and to allow the case the move forward:

The allegation in the complaint that “Backpage . . . redrafted the advertisement [of Jane Doe No. 3] to suggest she was an adult” suffices to allow the complaint by Jane Doe No. 3 to proceed in the face of the CDA’s statutory immunity, which does not protect service providers when they create content, FTC v. Accusearch, Inc., 570 F.3d 1187, 1197 (10th Cir. 2009). The further discovery, while not clarifying greatly the matter, provides, drawing all reasonable inferences in Plaintiff’s favor, a modicum of support for the notion that Backpage has substantively changed an ad, which then supports the information and belief allegation in the complaint. Thus, the CDA poses no bar to Jane Doe No. 3’s claim at this stage of the proceedings.