Does v. Reddit: Ninth Circuit’s Narrow Reading of the Sex Trafficking Exception Further Complicates Debate over Section 230 Immunity
By Heather Zhou - Edited by Teodora Groza
The Ninth Circuit’s recent ruling in Jane Does, et al v. Reddit, Inc. is the first federal appellate court decision addressing internet platforms’ Section 230 immunity under a 2018 anti-sex amendment. The decision, upholding Reddit’s immunity in a child sex trafficking claim, precludes a string of similar cases in federal Circuit Courts and sets the stage up for more debate over the future of Section 230.
Section 230 of the Communication Decency Act, passed in 1996 and regarded by some as “the law that gives us the modern internet,” shields internet platforms from legal liability for content posted by third-party users. In 2018, Congress passed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) to amend Section 230, carving out the broad protection afforded by Section 230 in certain child sex trafficking claims. In April 2021, a group of plaintiffs filed a class action against popular social discussion platform Reddit and alleged that Reddit knowingly facilitates and benefits from the posting of child sexual exploitation material (CSEM) by its users. The district court granted Reddit’s motion to dismiss and held that as an interactive computer service, Reddit is protected by Section 230. On appeal, the Ninth Circuit affirmed the lower court’s ruling and considered the scope of the FOSTA immunity exception for the first time. FOSTA provides that the Section 230 liability shield doesn’t apply when plaintiffs bring a civil claim for sex trafficking where the conduct underlying the claim constitutes a violation of the federal criminal sex trafficking ban. As written, the statute implicates two different requirements: under the criminal sex trafficking ban, plaintiffs have to show that internet platforms “knowingly benefited” from trafficking; in contrast, to bring a civil claim for sex trafficking, the plaintiffs need only to show that the websites “knew or should have known” of the trafficking. The Ninth Circuit interpreted the statute narrowly and held that in order for the FOSTA exception to apply, the higher “knowingly benefited” standard must be met. It also held that the defendant-website’s own conduct, rather than the conduct of a third-party, must have violated the underlying criminal sex trafficking ban for FOSTA to apply. Thus, in the current case, plaintiffs’ allegations that Reddit “turned a blind eye” towards the unlawful content posted by its users failed to show that Reddit actively participated in sex trafficking.
Reddit preludes several upcoming suits where online platforms’ Section 230 immunity will be considered under FOSTA. The Ninth Circuit will soon hear another sex trafficking case involving Twitter, where two men similarly alleged that Twitter refused to remove their teenage pornographic videos and benefited from participating in the venture of sex trafficking involving them. The district court applied the lower “should have known” standard in allowing the case to proceed. The lawyer representing the two men claimed that because Twitter made “an intentional decision not to remove the content,” it could meet the higher knowledge requirement. The Eleventh Circuit will hear in November an eleven-year-old girl’s sex trafficking claim against Omegle.com LLC, an online platform that matches strangers for video chats. The Seventh Circuit is also expected to rule on the scope of FOSTA in a case against Salesforce, a customer relationship management company that provided services to Backpage, which was the world’s largest online sex ads platform before being seized by the federal government in 2018. Whether these two Circuit Courts will follow the Ninth Circuit’s approach and adopt a narrow reading of the FOSTA immunity exception remains an open question.
While the Reddit decision may represent an important victory for the proponents of Section 230, the debate over the law and the FOSTA amendment will only become more heated, especially in light of the Supreme Court’s recent decision to hear a case on Section 230 for the first time. The broad scope of Section 230 has been publicly questioned by legislators across the aisle. Courts in recent years have chipped away at the law by allowing plaintiffs to sue internet platforms under a product liability theory. While Congress has made many attempts and proposed numerous amendments to Section 230 in recent years, FOSTA (which was enacted in response to the Backpage seizure and with bipartisan support) is the only successful amendment to date. The 2021 report by the Office of Government Accountability (GAO), however, points out that relatively few claims were brought under FOSTA during the first four years of its enactment and that the law may even have hindered efforts to investigate and prosecute trafficking. Some thus argue that the Reddit decision further buttresses the point that FOSTA is “useless and unnecessary.” Others go so far as to challenge the constitutionality of FOSTA – in September, a group of plaintiffs filed an appeal in the D.C. Circuit, arguing that FOSTA censors online intermediaries that many people, especially sex workers, rely upon to speak, and asking the court to enjoin FOSTA.