A recent Reddit Inc. legal victory provides the first foray into how federal appeals courts will grapple with a 2018 anti-sex trafficking amendment to a foundational internet law.
The court battles over what critics have called an overly complicated amendment may be a cautionary tale about how or if Congress should alter Section 230 of the Communications Decency Act. The 26-year-old law is already facing increased scrutiny from politicians across the aisle who argue it does too much to shield the world’s largest companies from accountability for content posted by users.
The amendment, known as the Fight Online Sex Trafficking Act, created a new legal remedy for the victims of online sex trafficking by allowing them to sue websites that knew about the trafficking on their platforms.
But last week, the San Francisco-based Ninth Circuit became the first court of appeals to rule that the Section 230 shield can still be raised despite the FOSTA exemption. It sided with social discussion website Reddit in a lawsuit brought by the victims of child pornography who alleged the platform profited from trafficking.
“I don’t think it’s very surprising in the sense that FOSTA was a compromised piece of legislation to begin with,” said Mary Anne Franks, a technology law professor at the University of Miami and president of the Cyber Civil Rights Initiative. “It was a well-intentioned but not a particularly efficient or clear way of trying to amend Section 230.”
A string of similar sex trafficking cases are underway in appeals courts across the country, including against tech giants
Dani Pinter, senior legal counsel at the National Center on Sexual Exploitation, said she believes the Ninth Circuit got the ruling wrong, but other courts may come out differently.
“The whole intent of the statute was to allow sex trafficking victims their day in court, and then to find immunity for child pornography on a platform that knew it was there is just astounding,” she said.
FOSTA’s Complications
The FOSTA amendment outlines two different legal standards for what level of knowledge a platform had to have of the trafficking in order to face civil liability.
The Ninth Circuit agreed to use the higher “knowledge” standard described in the criminal sex trafficking ban: The plaintiffs had to allege that Reddit actually knew and benefited from the trafficking. A civil lawsuit normally uses the lower “should have known” standard.
The lawsuit against Reddit alleged that the platform ignored requests to remove child sexual abuse material over the past decade, and many topic-specific discussion threads known as subreddits were geared toward that content.
The Ninth Circuit ruled that those allegations weren’t enough to show Reddit actually knew and benefited from the illegal content.
The high knowledge standard means the law “retains only a limited capacity to accomplish its original goal of allowing trafficking victims to hold websites accountable,” wrote Circuit Judge
Caitlin Vogus, an attorney at the Center for Democracy and Technology, said the ruling provides needed clarity for interpreting the knowledge standard, which has divided district courts. “Outside the Ninth Circuit, this is going to be persuasive authority,” she said.
More Cases to Go
Not everyone agrees with the Ninth Circuit’s interpretation, and the court will soon hear another sex trafficking case involving Twitter.
In that case, brought by the National Center on Sexual Exploitation, the district court judge ruled that the plaintiffs only needed to meet the lower “should have known” standard. Twitter appealed the decision, which is now pending.
Pinter argued that even if the Ninth Circuit is now bound by precedent, the center’s lawsuit is factually different from the Reddit case.
The lawsuit alleges that Twitter specifically refused to take down child pornography videos after being notified by the plaintiffs. The videos were allegedly viewed more than 167,000 times, and Twitter only took them down nine days later.
“Twitter made an intentional decision not to remove the content,” Pinter said. “Even if you have the view that there should be this really, really high standard, I think that we meet that.”
The Eleventh Circuit in Montgomery, Ala., will hear arguments on Nov. 17 in a case against Omegle.com LLC, a website visited by millions every day that randomly matches strangers to video chat. The district court cited Section 230’s protections in dismissing a lawsuit claiming Omegle matched an 11-year-old girl with a sex predator.
In September, the plaintiffs in a lawsuit against Salesforce appealed their case to the Seventh Circuit, based in Chicago. In that case, a 13-year-old victim of sex trafficking alleged that Salesforce, which sells customer relationship management software, helped the now-defunct classified ads website Backpage.com become a dominant force in online sex trafficking.
The district court dismissed the case, ruling that Salesforce didn’t have actual knowledge of the trafficking.
Other plaintiffs have managed to skirt Section 230 using a novel legal theory that treats the platform as a defectively designed product. An Oregon federal judge in July dismissed a FOSTA claim against Omegle in a lawsuit from a minor who was sexually abused after meeting a predator on the platform. But the judge allowed the lawsuit to continue under the product liability theory.
Amending 230
Congress has proposed numerous amendments to Section 230 in recent years, but FOSTA has been the only successful legislation.
The law passed in the aftermath of high-profile congressional and federal law enforcement investigations into Backpage.com’s sex trafficking operations. The website was later seized and its corporate leadership pleaded guilty to facilitating prostitution and money laundering.
Those circumstances created a consensus that might be difficult to repeat for future Section 230 legislation, said Greg Louer, a technology lawyer and partner at Holland & Knight LLP. “That took a long time, even on a narrow issue where policymakers on a bipartisan basis wanted to solve the problem,” he said.
The Ninth Circuit’s ruling in the Reddit case noted that an earlier draft of FOSTA would have likely allowed the plaintiffs to defeat the Section 230 defense, but the amendment changed at the last minute.
Congress adjusted the language because it “was worried about the potential for really widespread civil liability and the chilling of all kinds of user-generated content online,” said Kendra Albert, clinical instructor at the Cyberlaw Clinic at Harvard Law School.
The Ninth Circuit provided clarity for the confusing language, but Albert said other parts of the statute have incentivized platforms to remove online tools that help keep legal sex workers safe.
For Franks, the University of Miami law professor, the ruling suggests that FOSTA was “too restrictive of an amendment to Section 230.” She has advocated for more comprehensive changes to the law, like clarifying the difference between online speech and content.
“This is the problem with the approach of singling out a certain type of crime and trying to do this very muddled way of getting an exception written into Section 230,” she said.
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