Appeals Court Tosses Another Dumb FOSTA Lawsuit Against Twitter

Over the last few years we've covered a number of different very, very questionable civil lawsuits brought against internet companies under FOSTA. We had predicted that there would be these vexatious lawsuits, looking to hold companies liable in a sort of cash grab, where people would just go after the companies with the deeper pockets, rather than whoever was actually responsible for whatever bad thing had happened.

In the most egregious version of this, such cases took the form of the lawsuits against sites like Salesforce.com and Mailchimp because Backpage had used those services. However, there were also a series of cases that involved at least some (often very tragic) examples of actual victims of trafficking, in which the trafficker themselves appeared to use an internet service as part of their trafficking effort. Notable cases on this front were filed against Reddit, Twitter, and Craigslist, among others.

These lawsuits actually do a really good job of demonstrating why Section 230 is so important in the first place, and why FOSTA is so problematic. Because, as we've explained over and and over and over again, all Section 230 really does is help get vexatious, mistargeted lawsuits kicked out an earlier stage. Even without 230, any such lawsuit would be required, under the 1st Amendment, to show that the services in question had actual knowledge of the illegal activity. And that is not happening. So, the removal of 230 only serves to extend the time and cost of these lawsuits.

But, of course, because there's a new" law, and that new law created a new" exemption from Section 230, courts still needed to figure all this out, and there was a very legitimate concern that the courts would mess this up.

Last year, we wrote about how the 9th Circuit had rejected the case against Reddit, noting again, that just because someone used the site, apparently as part of a trafficking effort, without any evidence that Reddit was actively involved in the trafficking, there could be no sustainable claim against the company. Specifically, the court (correctly!) recognized that you have knowingly participate in a sex trafficking venture.

The separate case against Twitter actually drew a lot more (often somewhat unhinged) attention, with people (falsely) insisting that it showed that Twitter was ignoring trafficking happening on its platforms, for which there remains little evidence (though, that may have changed under new management).

In the case against Twitter, the district court threw out most of the claims, noting that Twitter did not actually participate in the trafficking of the John Doe plaintiffs, and also that Section 230 did protect Twitter against claims that Twitter hosted child sexual abuse material (CSAM) involving the plaintiffs. However, it did say that, under FOSTA, claim 2 in the complaint, regarding facilitating" trafficking, which was carved out of Section 230 by FOSTA, could continue to move forward - which is what Twitter was appealing to the 9th Circuit. The lower court noted that, because of FOSTA, Twitter could potentially (not definitely) be held liable.

When FOSTA was being debated, we spent a fair bit of time talking about how broad the language of facilitating" was and how it would lead to frivolous lawsuits like this.

Anyway, the 9th Circuit has now affirmed the counts that the lower court tossed out and reversed the lower court keeping alive claim 2, saying that based on its ruling in the Reddit case, nothing was presented in the case suggesting that Twitter was an active, knowing participant in the trafficking activity. Therefore, the FOSTA claim fails.

With respect to Count 2, the legal standard applicable to that issue has nowbeen decided by Jane Does 1-6 v. Reddit, Inc., 51 F.4th 1137 (9th Cir. 2022),petition for cert. filed, - U.S.L.W. - (U.S. Jan. 25, 2023) (No. 22-695). Redditanswered the first certified question in the affirmative: [F]or a plaintiff to invokeFOSTA's immunity exception, she must plausibly allege that the website's ownconduct violated section 1591." 51 F.4th at 1141. Reddit answered the secondquestion in the negative: In a sex trafficking beneficiary suit against adefendant-website, the most important component is the defendant website's ownconduct-its participation in the venture.'" Id. at 1142. A complaint against awebsite that merely alleges trafficking by the website's users-without theparticipation of the website-would not survive." Id. The term [p]articipation ina venture,' in turn, is defined as knowingly assisting, supporting, or facilitating' sextrafficking activities. [18 U.S.C.] 1591(e)(4). Accordingly, establishing criminalliability requires that a defendant knowingly benefit from knowingly participatingin child sex trafficking." Id. at 1145. Reddit therefore requires a more active degreeof participation in the venture" than a continuous business relationship" betweena platform and its users. Because these questions certified for interlocutory appealare controlled by Reddit, the district court's contrary holding is reversed.

In other words, no, the 9th Circuit isn't going to allow frivolous FOSTA cases that try to hold websites liable just because a website was used in the course of trafficking, without the active knowledge of the platform.

Of course, because of FOSTA, these cases still have to go on much longer and cost more than if Section 230 just protected the websites in the first place.

That said, the 9th Circuit notes that with the Supreme Court examining Section 230 for the first time, all of this is subject to change.

But, still, this case similarly demonstrates why the Supreme Court changing 230 could make things much, much worse, as it would likely lead to a lot more of these frivolous lawsuits, of tangential connections to actual trafficking, rather than going after the actual traffickers, all in the hopes of cashing in from a company with deeper pockets.

As for the other claims that the lower court had already rejected? Again, the 9th Circuit rejects them as well. You can't just magically blame a website for trafficking when they had nothing to do with the actual trafficking. That's not how any of this works:

Regarding Count 1, the district court correctly ruled that Plaintiffs failed tostate a claim for direct sex trafficking liability under the TVPRA, 18 U.S.C. 1591(a)(1) and 1595(a). Section 1591(a)(1) creates a direct liability claim for[w]hoever knowingly ... recruits, entices, harbors, transports, provides, obtains,advertises, maintains, patronizes, or solicits by any means a person." 18 U.S.C. 1591(a)(1) (emphasis added).1 Because Plaintiffs nowhere allege in theircomplaint that Twitter provided," obtained," or maintained" a person, the districtcourt correctly concluded that Twitter's alleged conduct relates only to CSAMdepicting Plaintiffs, not to their persons (as required to implicate a direct violationof the TVPRA).

Finally, as to Count 4, the district court correctly ruled that section 230precluded Plaintiffs from stating a viable claim for possession and distribution ofchild pornography under 18 U.S.C. 2252A and 2255. Because the complainttargets activity that can be boiled down to deciding whether to exclude material thatthird parties seek to post online," such activity is perforce immune under section230." Roommates.Com, 521 F.3d at 1170-71. And although section 230(e)(1) exempts from immunity the enforcement of criminal laws under Chapter 110 of Title18 (which contains sections 2252A and 2255), our court has consistently held that 230(e)(1)'s limitation on 230 immunity extends only to criminal prosecutions,and not to civil actions based on criminal statutes." Gonzalez v. Google, LLC, 2F.4th 871, 890 (9th Cir. 2021), cert. granted, 143 S. Ct. 80-81 (Mem) (U.S. Oct 3,2022) (Nos. 21-1333, 21-1496)

I know how much people want to blame websites for bad people using them, but, as always, you should focus your anger on the actual people to blame: the bad people who broke the law, not the websites they may have used to do so.