from the fosta-doesn't-do-what-you-want-it-to-do dept
Wed, Oct 26th 2022 09:31am - Mike Masnick
There’s this weird thing that people who hate Section 230 continue to ignore: that if you just take away Section 230, it doesn’t magically make companies liable for the actions of their users. If you studied the history of Section 230 (i.e., read Jeff Kosseff’s excellent book on the topic) or just had a passing familiarity with the nature of concepts such as scienter and mens rea, you might understand these things. But most people, falsely, assume that without Section 230, websites automatically become liable for the things their users do, even if the websites are totally unaware of the details.
That’s wrong. And now the 9th Circuit has made it’s clear that’s wrong. As you’ll recall, back in 2018, Congress changed Section 230 for the first (and so far only) time to say it did not apply in cases involving sex trafficking as defined in 18 USC 1591. This was the now infamous FOSTA, which has been clearly shown to have not helped law enforcement stop sex trafficking (in fact, it’s made it more difficult for law enforcement), and has actually put more lives at risk as well, by making professions like sex work much more dangerous.
At the same time, it has opened up a new avenue for lawyers to file often questionable civil suits against various tech companies, often alleging that any extremely tangential relationship to sex trafficking can now be blamed on the websites. In April of 2021, some lawyers sued Reddit on behalf of unnamed “Jane Does” arguing that users on the site had (horrifically) shared child sexual abuse material (CSAM) including images of their client(s). The complaint made a bunch of wild conjectures, arguing that because Reddit doesn’t do age verification, and hasn’t magically stopped all users from uploading CSAM, that Reddit was knowingly platforming CSAM for profit. A year ago, the district court dismissed the lawsuit for a variety of reasons, basically noting that it was clear Reddit had no actual knowledge and therefore remained protected under Section 230.
That ruling was appealed to the 9th Circuit, leading to this new ruling that confirms that, without knowledge, you can’t hold Reddit liable. The court starts out by highlighting that the underlying question is who can actually be held liable for violating federal sex trafficking laws (1591), the website or the user. It notes that various district courts have decided in different ways on this question, but this is the first time the 9th Circuit has taken it up.
It notes that the language of the various laws at play are pretty clear, that to be liable, the sites own conduct must violate the law. First, the federal sex trafficking laws require as much:
In a sex trafficking beneficiary suit against a defendant-website, the mostimportant component is the defendant-website’s own conduct—its “participation inthe venture.” See 18 U.S.C. § 1595(a) (authorizing lawsuits against those who“benefit . . . from participation in a [trafficking] venture”). A complaint against awebsite that merely alleges trafficking by the website’s users—without theparticipation of the website—would not survive. Proof that a user committedcriminal trafficking may “entitle a plaintiff to relief” in a case against the user, butnot against the website.
Honestly, it seems like the ruling could have just ended here. The court is saying that even absent FOSTA/230, that there’s no underlying sex trafficking claim that can be brought against Reddit, given that Reddit was not participating in the venture, as required under long-exiting sex trafficking laws.
Still, the court goes on to note that FOSTA also hammers this home, that the site has to have knowledge of the activity and to have been responsible for the conduct itself.
Alongside section 230(e)(5)(A), FOSTA added two other trafficking-relatedimmunity exceptions to the CDA: sections 230(e)(5)(B) and (C). Those provisionspermit states to prosecute websites if “the conduct underlying the charge” wouldviolate 18 U.S.C. § 1591 or 18 U.S.C. § 2421A, which criminalize the facilitationof child sex trafficking and prostitution, respectively. 47 U.S.C. § 230(e)(5)(B)–(C). Because “identical words and phrases within the same statute should normallybe given the same meaning,” we assume that “the conduct underlying” has thesame meaning across the three provisions. Powerex Corp. v. Reliant EnergyServs., Inc., 551 U.S. 224, 232 (2007). This is “doubly appropriate” here, id.,because the provisions are adjacent and were enacted simultaneously, see Lomax v.Ortiz-Marquez, 140 S. Ct. 1721, 1725 (2020).
Because subsections (B) and (C) authorize criminal prosecutions, there isgood reason to think that “the conduct underlying the charge” as used in (B) and(C) refers only to the defendant’s own conduct. Reading criminal statutes, we“presume that Congress did not intend to ‘dispense with a conventional mens reaelement, which would require that the defendant know the facts that make hisconduct illegal.’” United States v. Collazo, 984 F.3d 1308, 1324 (9th Cir. 2021)(quoting Staples v. United States, 511 U.S. 600, 605 (1994)). Applying thisprinciple here, we presume subsection (B) permits states to prosecute websites fortrafficking only if the defendant “knowingly” facilitated trafficking, in violation of18 U.S.C. § 1591. See § 1591(e)(4). And we presume subsection (C) permitsstates to prosecute websites for promoting or facilitating prostitution only if thewebsite “inten[ded]” to do so, in violation of 18 U.S.C. § 2421A(a). In short, wepresume these provisions authorize criminal prosecutions only for a defendant’sown crimes. Because section 230(e)(5)(A) uses the same language, we read it toinclude the same limitation. See Powerex, 551 U.S. at 232. The statutory contextreinforces our conclusion that section 230(e)(5)(A) removes section 230 immunityonly when a website violates 18 U.S.C. §1591.
The panel of judges (minus one) also note that the legislative history supports this finding, noting that after concerns were raised by some of us how the original FOSTA language would be used to file frivolous lawsuits, that the Senate amended the language to suggest that knowledge of the underlying legal violation was necessary.
Opponents of the bill, however, were concerned that it would “bring adeluge of frivolous litigation targeting legitimate, law-abiding intermediaries”because it was “unbounded by any actual knowledge” requirement. The StopEnabling Sex Traffickers Act of 2017: Hearing on S. 1693 Before the S. Comm. onCom., Sci. & Transp., 115th Cong. 35 (2017) (statement of Abigail Slater, GeneralCounsel, Internet Association). These opponents suggested amendments to require“a clear sense of knowing,” as to “not damage those who are truly trying to growand innovate based on that protection they get from lawsuits.” Id. at 53 (statementof Xavier Becerra, Attorney General of Cal.).
In response, the Senate altered the bill to its current form to “eliminatesection 230 as a defense for websites that knowingly facilitate sex trafficking.” S.Rep. No. 115-199, at 2 (2018) (emphasis added). As reintroduced, the bill’s“knowing standard” was intended to create a “high bar” for liability.
Given all of that, the court then looks at whether or not Reddit’s own conduct here violated the law, and determined that it clearly did not.
In this case, the plaintiffs have not alleged that Reddit knowinglyparticipated in or benefitted from a sex trafficking venture. They allege that Redditprovides a platform where it is easy to share child pornography, highlightssubreddits that feature child pornography to sell advertising on those pages, allowsusers who share child pornography to serve as subreddit moderators, and fails toremove child pornography even when users report it, as the plaintiffs did in thiscase. Together, they say, this amounts to knowing participation in a sex traffickingventure.
Taken as true, these allegations suggest only that Reddit “turned a blind eye”to the unlawful content posted on its platform, not that it actively participated insex trafficking. See Afyare, 632 F. App’x at 286. Moreover, the plaintiffs have notalleged a connection between the child pornography posted on Reddit and therevenue Reddit generates, other than the fact that Reddit makes money fromadvertising on all popular subreddits. See Noble, 335 F. Supp. 3d at 524 (findinginsufficient connection between general benefits defendant received from workingfor individual who perpetrated sex trafficking and the perpetrator’s conduct towardthe victim). Plaintiffs who have successfully alleged beneficiary liability for sextrafficking have charged defendants with far more active forms of participationthan the plaintiffs allege here. See, e.g., Canosa v. Ziff, No. 18 CIV. 4115 (PAE),2019 WL 498865, at *23–24 (S.D.N.Y. Jan. 28, 2019) (denying motion to dismissbeneficiary liability claims where plaintiffs alleged affiliates of Harvey Weinsteinlured victims “through the promise of production deals,” provided Weinstein“medications he required to perform sexual acts,” and “cleaned up after his sexualassaults”). As such, the plaintiffs have failed to state a claim that Reddit violated18 U.S.C. § 1591.
Again, given that they found that Reddit did not violate the sex trafficking law, the whole FOSTA/230 discussion is… almost extraneous. Indeed, while the ruling is good and important, I almost fear that by going more into FOSTA/230 that it leads people to argue that the problem here is not that the plaintiffs failed to make a legitimate sex trafficking claim against Reddit, but that FOSTA “didn’t go far enough.” But, that’s wrong. Because the underlying claim has to have merit, and here it did not.
As noted above, there is one judge on the panel who chose not to sign onto the part about the legislative history. Judge Ryan Nelson concurs with the rest of the majority opinion, but basically doesn’t want to bring the legislative history into the conversation (Nelson, a Trump appointee and a Federalist Society member is basically just toeing the standard Scalia-inspired approach that legislative history is meaningless and should never be used in court). Judge Nelson notes that the ruling doesn’t even need it, since the “statutory language is unambiguous.”
On the whole, this is a good ruling that again highlights that you don’t get to just make websites liable, even if you take away Section 230. The website has to actually do something that violates the law. All Section 230 really does is make sure that you put the liability on the right party. And that’s what has happened here. Again.
Filed Under: 9th circuit, conduct, csam, fosta, knowledge, liability, section 230, sex trafficking