Twitter dodges liability over tweeted child porn

SAN FRANCISCO (CN) — A three-judge Ninth Circuit panel on Wednesday affirmed dismissal of a lawsuit claiming Twitter profited from sex trafficking by allowing tweets containing sexually explicit images of two 13-year-old boys, citing a 1996 federal law that shields internet sites from liability for content posted by their users.

The law, Section 230 from the Communications Decency Act, is currently under review by the U.S. Supreme Court.

Two men sued Twitter in January 2021 claiming they were manipulated into sharing sexually explicit videos of themselves when they were 13 and later found the videos posted to the social media site. The then-18-year-old John Doe #1 and John Doe #2 say a sex trafficker posing as a 16-year-old girl tricked them into sending pornographic videos of themselves through Snapchat, and they discovered links to the videos on Twitter years later.

The plaintiffs say they alerted law enforcement about the tweets and begged Twitter to take them down. Twitter refused to do so until nine days later, when a Department of Homeland Security agent urged action. At that point, the posts had already received 167,000 views and 2,223 retweets, according to the lawsuit.

They sued Twitter, claiming it violated the Trafficking Victims Protection Reauthorization Act, which makes it illegal to benefit from a sex trafficking venture. Internet platforms are generally immune from lawsuits over content posted by users under Section 230 of the Communications Decency Act, but Fight Online Sex Trafficking Act of 2017 carved out a specific exception for violations of the sex trafficking law.

But a federal judge dismissed the bulk of their lawsuit, rejecting all but their claims of unlawful profiting from a sex trafficking venture. The men and Twitter appealed to the Ninth Circuit, where Twitter argued it could not be sued because it did not participate in the sex trafficking and even if it had, it gained no benefit. Meanwhile, Does' attorney argued Twitter was too slow to remove the posts after the men complained — and that the posts should have never even gone up since Twitter pays human moderators.

In a unanimous and unpublished memorandum issued Wednesday, the Ninth Circuit panel sided with Twitter and dismissed the case.

"Regarding count 1, the district court correctly ruled that plaintiffs failed to state 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.' Because plaintiffs nowhere allege in their complaint that Twitter 'provided,' 'obtained,' or 'maintained' a person, the district
court correctly concluded that Twitter’s alleged conduct relates only to CSAM depicting plaintiffs, not to their persons (as required to implicate a direct violation of the TVPRA)," the panel wrote in the 6-page ruling.

The panel also affirmed dismissal under Section 230 of the Communications Decency Act, and ordered the lower court to dismiss the count involving unlawful profiting from sex trafficking, citing a 2022 Ninth Circuit decision in a similar case against Reddit which held the plaintiffs failed to show the platform “knowingly benefitted” from trafficking by third parties.

Mere allegations of trafficking by the website’s users, without the participation of the website itself, would doom any such complaint, the panel said. But in a footnote, the panel added: “We recognize that a petition for certiorari in Reddit is pending, and that the Supreme Court also has before it two related cases, the disposition of which could affect our court’s Reddit precedent. To the extent developments in any of those cases might affect our court’s holding in Reddit, the district court is well-equipped to address such arguments in the first instance.”

U.S. District Judges Gabriel Sanchez, a Joe Biden appointee and Lawrence Van Dyke, a Donald Trump appointee, and U.S. District Judge Stephen Murphy III, a George W. Bush appointee sitting with the panel by designation from the Eastern District of Michigan, made up the panel.

Attorneys for the plaintiffs decried what they said was essentially a grant of immunity to technology companies for child sexual abuse material, but said Wednesday’s decision “was not the final outcome.” Twitter had it “knowingly possessed and broadly distributed child sex abuse materials” which, as a result, was viewed hundreds of thousands of times on the Twitter platform, the plaintiffs' attorneys said.

“Twitter has never challenged these facts,” they said. “Instead, from the beginning of this case Twitter has argued that it is 100% immune from civil liability because of Section 230 of the Communications Decency Act. But Congress never intended to give technology companies immunity for knowing violations of the laws protecting victims of child pornography and sex trafficking.”

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