Twitter fights to dodge liability over tweeted child porn

SAN FRANCISCO (CN) — Attorneys for Twitter on Thursday urged a Ninth Circuit panel to reverse a federal judge's refusal to dismiss claims it benefited financially by allowing tweets containing child pornography.

Two men sued in January 2021 claiming they were manipulated into sharing sexually explicit videos of themselves when they were 13 and later found the videos posted on Twitter. 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.

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. Arguing before the Ninth Circuit panel on Thursday, Twitter attorney Derek Shaffer pointed to 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,

There was no trafficking of a person, no overt act implying the participation of Twitter, he said. There needs to be conduct which will cause the victim to engage in a sex act from which Twitter might have profited. Twitter, Shaffer insisted, is not attempting to profit from the presence of child pornography on its platform.

“We want to be better,” he said. “We’re striving for perfection.”

U.S. Circuit Judge Gabriel Sanchez, a Joe Biden appointee, said he didn’t have the impression the law requires someone to prove a defendant is likely to promote sex trafficking in the future. But Shaffer said Twitter had no idea anything uploaded to its platform led to or stemmed from trafficking.

U.S. District Judge Stephen Murphy III, a George W. Bush appointee sitting with the panel by designation from the Eastern District of Michigan, noted Twitter has algorithms which allowed the images to be seen, so someone at Twitter must have known they had been posted.

And U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, noted Twitter had reviewed the material at the root of Does’ suit and determined it wasn’t child porn.

Does' attorney Lisa Haba pointed out that in the Reddit case, volunteers reviewed uploads to the site. But at Twitter, paid employees do the verification.

“Then, that employee refused to follow the law and remove the offending images,” she said.

When asked by VanDyke whether she was suggesting that Twitter was actively participating in trafficking, Haba said the the images were created and posted knowingly. “It was a commercial sexual act and it involved a child. That is the definition of 1591," she said.

VanDyke pressed: “You’re saying that the turning point is ‘as soon as you’re told, you’re engaging in trafficking,” and Haba replied, “Twitter had a legal obligation to remove it immediately."

After VanDyke noted Twitter’s algorithms were designed to keep readers engaged and continuing to view material on the platform. Judge Murphy suggested the plaintiffs should narrow their claims.

“Claims of trafficking a person just go too far,” Murphy said.

But Haba said Twitter has conceded that if it had engaged in criminal acts, it cannot now hide behind Section 230.

“Twitter was notified that criminal acts were being carried out on their platforms,” she said. “They took multiple days to review it and they refused to remove it.”  

The panel did not indicate how or when it will rule.

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