SAN FRANCISCO (CN) — A law signed by former President Donald Trump has opened the door to potentially hold Twitter liable for allowing child pornography to circulate on its platform, a federal judge ruled Thursday.
In 2018, Trump signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), which carved out an exception to a 1996 law that shields internet platforms from lawsuits over content posted by their users. The law was passed in reaction to websites like Backpage.com, which critics said facilitated an online marketplace for prostitution.
The law was intended to discourage platforms from making it easy for sex traffickers to advertise and sell the services of their victims online. Some civil rights groups have complained the law amounts to censorship of online speech.
Twitter was sued this past January by two young men who say they were manipulated into sharing sexually explicit videos of themselves as minors before finding the videos posted on Twitter a few years later.
Two 18-year-old plaintiffs suing under the pseudonyms John Doe #1 and John Doe #2 say they were 13 years old when a sex trafficker posing as a 16-year-old girl tricked them into sending pornographic videos of themselves through the social media app Snapchat. A few years later when they were in high school, links to those videos began appearing on Twitter in January 2020.
The plaintiffs say they alerted law enforcement about the tweets and urgently requested that Twitter remove them, but Twitter refused to do so until nine days later when a Department of Homeland Security agent contacted Twitter and urged action. At that point, the posts had already received 167,000 views and 2,223 retweets, according to the lawsuit.
Twitter is accused of violating 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 FOSTA carved out a specific exception for violations of that sex trafficking law.
Twitter argued it could not be sued for the alleged violation because it did not participate in the venture, and even if it had, it gained no benefit from the alleged participation.
In a 56-page ruling, U.S. Magistrate Judge Joseph Spero rejected that argument. He found the complaint adequately alleged the sexually explicit tweets were monetized to generate ad revenue for Twitter. Spero said he found that allegation plausible given that the tweets were reportedly viewed and shared thousands of times.
The judge also noted that Twitter was specifically alerted about the videos multiple times but took no action for more than a week. According to the lawsuit, Twitter also received a complaint in December 2019 stating that a user who posted some of the videos had been sharing “obvious child porn,” but the platform allegedly did nothing in response.
“The Court finds that these allegations are sufficient to allege an ongoing pattern of conduct amounting to a tacit agreement with the perpetrators in this case to allow them to post videos and photographs it knew or should have known were related to sex trafficking without blocking their accounts or the videos,” Spero wrote.
The judge dismissed other claims from the lawsuit, including invasion of privacy and negligence claims, because Twitter remains shielded from liability for those claims under Section 230 of the Communications Decency Act.
Reacting to Spero's ruling in a statement Thursday, plaintiffs’ attorney Peter Gentala called it a landmark decision.
“This historic ruling is the first breakthrough for an online trafficking survivor in any court where Twitter has alleged CDA immunity,” said Gentala, who serves as senior legal counsel for the National Center on Sexual Exploitation.
Gentala also called the ruling a step toward justice for his clients, whom he said were harmed by Twitter’s decision to let child sexual abuse material spread on its platform.
“No tech company should be allowed to profit from and outright ignore child sexual abuse material,” Gentala said.
In an emailed statement, a Twitter spokesperson said the company has zero tolerance for material that features or promotes child sexual exploitation.
“We aggressively fight online child sexual abuse and have heavily invested in technology and tools to proactively enforce our policy,” a Twitter spokesperson said, adding that the company has a team dedicated to removing illicit content and working with law enforcement to protect minors from harm.
“We disagree with the Court's ruling and its interpretation of relevant law, and we strongly deny that Twitter benefited in any way from the activities alleged in this complaint,” the spokesperson said.
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