By: Eric Mulvey
A lawsuit brought by two young men against Twitter for allegedly benefitting from sex trafficking can proceed, said Judge Joseph C. Spero, a federal judge in the Northern District of California, on August 19, 2021. The two young men, referred to as John Doe 1 and John Doe 2, brought thirteen claims against Twitter, with twelve of the claims being dismissed largely on immunity under Section 230 of the Communications Decency Act. However, Judge Joseph C. Spero allowed the claim that Twitter allegedly benefitted from sex trafficking when it failed to remove pornographic videos of the plaintiffs to proceed.
Section 230 of the Communications Decency Act contains a “Good Samaritan” provision that grants immunity to interactive computer services (“ICS”) providers from liability for restricting access to certain types of materials or for giving users the technical means to restrict access to such materials. It states, “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.”
However, Section 230 was amended in 2018 when Congress passed the Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”), to allow federal civil claims for conduct that constitutes sex trafficking. This bill also amended the federal criminal code definition of sex trafficking, defining “participation in a venture” to mean knowingly assisting, supporting, or facilitating a sex trafficking violation.
The complaint brought by the Plaintiffs, alleges that they were solicited and recruited at thirteen years old into sending pornographic videos of themselves to third party traffickers. These videos were then posted on Twitter a few years later and upon finding them online, the Plaintiffs contacted law enforcement and requested Twitter remove them. However, Twitter did not initially remove the videos, allowing the video to accrue more than 167,000 views and 2,223 retweets. According to the Plaintiffs, the video was finally removed nine days later when an agent of the Department of Homeland Security contacted Twitter and requested the removal of the videos. In order to decide the claim that Twitter benefitted from sex trafficking, the Court analyzed three primary issues: how stringent is the mens rea requirement as to Twitter’s knowledge of whether Plaintiffs were victims of sex trafficking; what must be alleged to show that Twitter participated in a “venture”; and what must be alleged to show that Twitter received a benefit from the sex trafficking venture and that the benefit motivated its conduct?
Twitter argued that as a provider, it is immune under Section 230 to all of the plaintiffs’ claims. Twitter stated that it “vigorously combats child sexual exploitation material through a combination of methods, including review of user reports and the use of proprietary technology to proactively identify and remove such material” but that “given the sheer volume of Tweets posted every day on Twitter’s platform it is simply not possible for Twitter…to find and remove all offending content immediately or accurately in call cases.” Twitter also asserted that the exception to immunity created by FOSTA, allowing a victim of sex trafficking to bring a civil action under Section 1591 of the Federal Criminal Code, is not applicable due to the stringent mens rea requirement. This exception to Section 230, argued Twitter, applies only to “openly malicious actors,” and does not otherwise change the scope of immunity granted under Section 230.
Plaintiffs argued that Twitter was a beneficiary of sex trafficking under Section 1591. They alleged that Twitter monetizes the child sexual abuse material (“CSAM”) on its platform by gaining more views from CSAM, which allows the platform to increase popularity and attract advertisers. As for Twitter’s knowledge of participating in sex trafficking, Plaintiffs allege that Twitter engaged in overt acts that further sex trafficking “by knowingly hosting, possessing, and distributing the CSAM of Plaintiffs.”
Mens Rea Requirement
In deciding the mens rea requirement of ICS providers involved in sex trafficking, the Court found that Section 1592(a)(2) is not subject to the more stringent mens rea requirements that apply to criminal violations of the provision, which require actual knowledge in the participation of sex trafficking. The court concluded where a plaintiff seeks to impose civil liability under Section 1591(a)(2), a known or should have known standard applies. Therefore, Twitter could be found liable had they known or should they have known that the posts were part of a sex trafficking venture.
Participation in a Sex Trafficking Venture
As for alleging that Twitter participates in a sex trafficking venture, the Plaintiffs must “allege at least a showing of a continuous business relationship between the trafficker and Twitter such that it would appear that the trafficker and Twitter have established a pattern of conduct or could be said to have a tacit agreement.” The Court concluded that the Plaintiffs allegations were sufficient to meet these requirements, pointing to two particular facts. First, John Doe 1 alerted Twitter about the specific videos. Second, Twitter responded two days later, saying the content in the video did not violate its policies so no action would be taken. In addition, the videos were allegedly posted by the user account @StraightBros, which had been the subject of a citizen complaint in December 2019 claiming that this account carried links to child pornography.
Benefit Received from Sex Trafficking
As for the benefit received by Twitter, Plaintiffs “must allege facts from which the court can reasonably infer that Twitter knowingly benefitted financially or by receiving anything of value.” Twitter monetizes content through advertising, sales of access to its application programming interface (“API”), and data collection. Plaintiffs allege that since the videos were viewed at least 167,000 times and retweeted 2,200 times, there is a plausible inference that the videos of the Plaintiffs generated advertising and attracted users, both which benefitted Twitter. The Court agreed with the Plaintiffs, concluding there is a plausible inference that Twitter could have benefited from the videos.
Although this claim is proceeding, it does not mean Twitter benefitted from sex trafficking, only that Twitter does not have Section 230 protections and that they possibly benefitted from sex trafficking. Twitter monetizes its platform through advertisement and attracting viewers, but the Plaintiffs must now prove that not only does Twitter permit sex trafficking on its platform, but it also attracts users and advertisers because of sex trafficking. It is not clear if Twitter actually benefits from this type of content, as it seems advertisers would not be attracted to websites that support this kind of material. However, FOSTA is relatively new and has rarely been used, so there is uncertainty as to how the Court will apply the law to Twitter in this case.
Student Bio: Eric Mulvey is a second-year law student at Suffolk University Law School. He is a staffer on The Journal of High Technology Law. Eric received a Bachelor of Arts Degree in Economics from Union College.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
