(CN) — The 11th Circuit heard arguments Thursday over whether anonymous chat website Omegle is liable for those who misuse the site to sexually exploit children.
In 2020, the parents of an 11-year-old girl filed suit against Omegle, a website which allows users to anonymously "talk to strangers" by randomly pairing them in one-on-one chat sessions.
According to the complaint, their child was put into a chat with an adult user who claimed to have access to her location and threatened to hack her computer if she did not comply with his demands to remove her clothing on camera. The user allegedly recorded the encounter.
Omegle is accused of knowing that its website is not only used by but also caters to child predators, and profiting from the increased web traffic from so-called "cappers" who record their abusive conduct of children and share it online.
After the case was transferred from New Jersey to Tampa federal court, the parents' claims were dismissed last year by U.S. District Judge Virginia Hernandez Covington. The George W. Bush appointee ruled that Omegle has immunity under Section 230 of the Communications Decency Act, which says that an internet service platform is not legally responsible for what users say and do. The parents appealed to the Atlanta-based 11th Circuit.
"There is nothing decent about this," said James Marsh, an attorney representing the parents, during Thursday's hearing in Montgomery, Alabama.
Marsh reminded the three-judge appellate panel that Congress intended for the 1996 law to help prevent minors from gaining access to sexually explicit materials on the internet.
After websites began to misuse the Communications Decency Act as a shield for their disregard to sex trafficking on their platforms, it was amended in 2018 to exclude immunity for "participation in a venture," which it defines as "knowingly assisting, facilitating, or supporting sex trafficking."
Marsh argued that Omegle engaged in such participation because users can utilize keywords to be matched with specific people such as minors, and that the site either intentionally or improperly allowed minors' personal information to be leaked, including their geographic location.
But the attorney explained that because his clients' case was dismissed before the discovery phase, they haven't had the opportunity to fully uncover the extent of Omegle's knowledge of child exploitation and the workings of the site's algorithms and content moderation.
Omegle's attorney Kimberlee Gunning told the 11th Circuit panel that her client should be granted complete immunity because the website itself did not commit the act against the child and it isn't profiting from the conduct because users can join for free.
"So your position is that even if your client knows that thousands of children each year are being sex trafficked, they are immune because they don't know the names of which children?" asked Senior U.S. Circuit Judge Edward Carnes, who was appointed by George H. W. Bush.
"You don't think it'd be absurd to interpret the statue this way?" Carnes asked.
U.S. Circuit Judge Andrew Brasher, a Donald Trump appointee, said he believes Gunning is wrong about Omegle having absolute immunity and that the judges must decide whether an actual knowledge or constructive knowledge standard should be applied to determine liability in civil cases involving child pornography crimes.
If someone else were to bring a lawsuit, "the company now has knowledge that their site is being used for child pornography," said U.S. Circuit Judge Barbara Lagoa, who was also appointed by Trump.
Amicus briefs were filed in support of the parents from sexual violence and victim advocacy organizations including CHILD USA and RAINN, as well as attorneys with collective experience researching sexual violence and working with victims and survivors.
"Without the ability to engage in discovery, there will be no serious consideration of how much Omegle knew about the likelihood of harm to children accessing its platform. This is especially important given the sophisticated algorithms implemented by online platforms that prioritize user engagement and profitability, often at the expense of children’s safety," attorney Vivek Jayaram wrote in an amicus brief for the groups.
The 11th Circuit judges did not signal Thursday when they intend to issue their ruling.
Omegle and other random chat websites surged in popularity amid the Covid-19 pandemic, especially among minors who saw them increasingly used by social media influencers. As a result, online child sexual abuse skyrocketed, with record high reports to the Internet Watch Foundation.
In July, a federal judge in Portland, Oregon, ruled that Omegle was not legally protected in a similar suit involving the sexual exploitation of another 11-year-old girl.
In response to the lawsuit, a CBC News reporter decided to check out the website herself. During her hour on Omegle, she was matched with over two dozen users, a majority of which appeared to be men who were naked or off camera.
One of them, who said he was 27 and had his chest exposed, told the reporter that he has used the site to masturbate in front of minors. The reporter was paired with this man after they both used the keyword "Roblox," which is a popular online children's game.
She said that five of the men she was paired with were visibly masturbating. At least two of her matches said they were under 18.
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