The Interplay Between Section 230 Immunity and The Allow States and Victims to Fight Online Sex Trafficking Act of 2018
Published: November 10, 2022
The Ninth Circuit was recently called upon to decide a case of first impression for it involving the interplay between immunity granted to website providers under the Communications Decency Act (“CDA”) and potential civil liability under The Allow States and Victims to Fight Online Sex Trafficking Act of 2018 (“FOSTA”). In the case, Jane Does v. Reddit, Inc., decided October 24, 2022, the Court affirmed the dismissal of the plaintiffs’ class action complaint against Reddit for allegedly hosting child pornography in its forums after analyzing the interplay between the CDA and FOSTA.
Reddit is a popular website that allows users to post content in smaller, searchable forums devoted to certain topics. Reddit users can create and moderate each subreddit thread and in turn, Reddit employees can remove moderators, content or other posts that violate its policies.
The plaintiffs in Jane Does v. Reddit consisted of a group of parents of minors (and at least one former minor) who had sexually explicit images or videos of them posted in Reddit forums. Each plaintiff alleged similar factual claims in that after discovering the images of themselves and/or their children, they complained to Reddit to remove such material and that Reddit would sometimes, but not always, remove such material. Further, they claimed that if such material was removed, it would likely be reposted shortly thereafter. Plaintiffs contended they had contacted Reddit hundreds of times to report these explicit posts and seek their removal.
Plaintiffs filed a class action lawsuit against Reddit alleging violations of FOSTA (among other claims) alleging that Reddit benefited financially as a result of its users posting child pornography in its subreddits. Plaintiffs claimed that Reddit did little to remove the child pornography because it drove user traffic and as a result, revenues. In essence, plaintiffs alleged “that Reddit earns substantial advertising revenue from subreddits that feature child pornography because they generate controversy and attract viewers.” Plaintiffs’ contended that because Reddit financially benefitted from the posting of child pornography on its site and allegedly had done little to remove it or train its moderators to remove it, Reddit should be “liable as a beneficiary of child sex trafficking among other causes of action.”
Reddit moved to dismiss the claim and the U.S. District Court for the Central District of California granted its motion. The district court held that Reddit was entitled to immunity under section 230 of the CDA because the plaintiffs had not pled that Reddit’s “own conduct violated the criminal sex trafficking statute [FOSTA].” The plaintiffs appealed this decision to the Ninth Circuit.
The Ninth Circuit recognized that the primary issue was “the scope of FOSTA’s exception to section 230 immunity for civil child sex trafficking claims.” The Ninth Circuit began by focusing its analysis on interpreting the statutory provisions at issue, primarily the CDA and FOSTA.
Section 230 of the CDA provides immunity to the “provider or user of an interactive computer service” as a result of “any information provided by another information content provider.” In essence, this provision of section 230 “immunizes providers of interactive computer services against liability arising from content created by third parties.” The Ninth Circuit has long recognized that this immunity protection is to be “robust.”
In 2018, Congress passed FOSTA in an attempt to fight the proliferation of child pornography and online sex trafficking. As part of passing FOSTA, Congress amended section 230 of the CDA to provide that its immunity would not apply “to certain sex trafficking claims.” In essence, Congress voted to strip section 230 immunity from any provider “if the conduct underlying the claim constitutes a violation of [18 U.S.C. §1591].” Section 1591 is a federal criminal child sex trafficking statute that imposes liability on both perpetrators and beneficiaries of such trafficking. However, as the Ninth Circuit recognized “the standard for beneficiary liability … is higher: to be held criminally liable as a beneficiary, a defendant must have actual knowledge of the trafficking and must `assist, support or facilitate’ the trafficking.”
Both plaintiffs and Reddit agreed that section 230 immunity could apply to Reddit as an interactive computer service provider. Thus, the issue was whether plaintiffs had properly alleged claims against Reddit that would benefit from FOSTA’s exception to section 230 immunity. Plaintiffs argued that the website could be liable as a beneficiary if “someone’s conduct,” such as a user’s conduct, violated the criminal statute and the claim against the website arose out of that violation. On the other hand, Reddit argued that a website could only be liable for its own criminal conduct. The Ninth Circuit recognized that there was a split among the district courts within the Circuit on this very issue. The Ninth Circuit resolved this difference by concluding that a plaintiff can only take advantage of FOSTA’s exception to section 230 immunity by “plausibly alleging that the website’s own conduct violation section 1591.”
The Ninth Circuit began by looking at the language of FOSTA and determined that it was unambiguous as written. In doing so, the Ninth Circuit concluded that based on the plain text of FOSTA and other precedent, FOSTA’s immunity exception could only apply if the website’s own conduct, and not that of a third party, violated section 1591. The Ninth Circuit looked at case law interpreting similar language from the Foreign Sovereign Immunities Act to determine that the focus had to be on the website’s own conduct, as opposed to that of a third party. The Ninth Circuit concluded that under this reading, plaintiffs’ claim against Reddit could not survive because it was “the conduct of the Reddit users who posted the offending images and videos,” rather than conduct of Reddit, that facilitated the trafficking conduct. The court noted that the complaint alleged ways in which Reddit might financially benefit from the presence of child pornography on its site but did not allege that Reddit had specifically participated in and benefitted from the trafficking scheme.
To buttress its conclusion, the Ninth Circuit looked at two other trafficking-related immunity exceptions to the CDA that were likewise passed with FOSTA. The Ninth Circuit concluded again that the plain language of these amendments made clear that it was the defendant’s own conduct that needed to constitute a violation of the trafficking statutes, not those of third parties, to exclude that defendant from section 230 immunity.
Although the Ninth Circuit concluded that the language of the statutes at issue was clear and unambiguous, it continued its analysis by looking at the legislative history surrounding the enactment of FOSTA. Beginning in the 2010’s, concern arose that websites such as Backpage.com were taking advantage of section 230 immunity “to facilitate online sex traffic and promote illegal pornography.” There was also concern that while section 230 may not have immunized websites like Backpage from federal criminal sex trafficking laws, “it was unclear whether states could bring analogous prosecutions” against such websites.
Congress passed FOSTA in order to address these issues. Congress declared that “the purpose of the bill was `to give survivors their day in court … [and] open avenues of protection to law enforcement where they are currently roadblocked.’” Critics of the bill were concerned that it would “bring a deluge of frivolous litigation targeting legitimate law-abiding intermediaries” because it originally did not contain an “actual knowledge” requirement. In response, the U.S. Senate amended FOSTA prior to enactment to “eliminate section 230 as a defense for websites that knowingly facilitate sex trafficking.” Congress concluded that by imposing a “knowing standard,” it would create a “high bar” for potential liability. The Ninth Circuit recognized that by imposing a “knowing” requirement, it would frustrate some of the goals of the original proponent of the law by narrowing the exception to section 230 immunity. However, the Ninth Circuit concluded that “this is a flaw, or perhaps a feature, that Congress wrote into the statute, and is not one we can rewrite by judicial fiat.”
The Ninth Circuit then turned its attention to the facts alleged against Reddit and how it allegedly benefitted from the presence of child pornography in its forums. The Ninth Circuit concluded that it would follow the reasoning of other courts that “to hold a defendant criminally liable as a beneficiary of sex trafficking, the defendant must have actually `engaged in some aspect of the sex trafficking’.” The Ninth Circuit further reasoned that FOSTA and section 1591 did “not target those that merely `turn a blind eye to the source of their [revenue]’.”
After reviewing the allegations in the complaint, the court concluded that plaintiffs had not alleged that Reddit “knowingly participated in or benefitted from a sex trafficking venture.” Rather, even assuming that the allegations in the complaint were true, the Ninth Circuit concluded that they did not amount to more than “Reddit turning a blind eye” to the unlawful content posted on its platform, not that it actively participated in sex trafficking. Further, the only connection plaintiffs alleged between Reddit and the child pornography posted on its site was that “Reddit makes money from advertising on all popular subreddits.” Thus, the Ninth Circuit affirmed the dismissal of the claims by the district court.
It remains to be seen whether the litigants in the Jane Does v Reddit case will seek review by the U.S. Supreme Court and have a more receptive audience there. It is also possible that Congress may see the need to revisit this issue to determine whether to broaden the exception to the section 230 immunity under the FOSTA.