At the age of thirteen, the plaintiffs of this case were solicited and recruited for sex trafficking and manipulated into providing child pornographic videos through Snapchat.
Three years later, when they were still in high school, these child pornographic videos of the plaintiffs were posted on Twitter (by third parties). At the moment the plaintiffs learnt about the Twitter posts of their videos, they actively informed law enforcement and requested Twitter to delete them. One of the plaintiffs also provided Twitter with his driver’s license, clearly demonstrating his status as a minor. However, Twitter initially refused to delete the said content, stating that no violation of its pocilies was found. The mother of one of the plaintiffs subsequently contacted the Department of Homeland Security, who further contacted Twitter ordered to have the videos removed.
Upon the request of the Department of Homeland Security, Twitter eventually removed the content with a nine-day delay, and as a result, the child pornographic videos of the plaintiffs received more than 167,000 views and 2,223 retweets. Twitter received financial benefits generated from the views and retweets.
Additionally, the said content received numerous comments pointing out that the videos involved minors and prior to the reporting and complaint of the plaintiffs, one of the disseminating accounts previously had been subject to a complaint regarding its “obvious child porn” content.
United States District Court, Northern District of California
The plaintiffs lodged a lawsuit against Twitter with thirteen different claims, including sex trafficking claims and alternative claims on other grounds, seeking compensatory and punitive damages, injunctive relief, restitution, disgorgement of profits and unjust enrichment and attorneys’ fees and costs. The present Order (as described in this case summary) responded to Twitter’s motion to dismiss all the claims of the plaintiffs, invoking their traditional immunity of interactive computer service providers (“ICS”) under the Communication Decency Act (CDA) Section 230, meaning normally ICS providers are not liable for the content third-parties post on their platform. The Court analyzed the claims of the plaintiffs accordingly, and dismissed all the claims upon Twitter’s motion, except for the claim related to beneficiary liability of sex trafficking under Trafficking Victims Protection Reauthorization Act (“TVPRA”) (claim two).
Regarding the sex trafficking claims, It further combed the evolvement of federal legislations on the traditional immunity of interactive computer service (“ICS”) providers and the exceptions provided by the “Allow States and Victims to Fight Online Sex Trafficking Act” of 2017 (FOSTA). With careful analysis of the legislation and previous judicial practices, the Court found FOSTA narrowed the scope of immunity for ICS providers, rendering the immunity under CDA Section 230 inapplicable to sex trafficking offenses. Further, the Court recalled the provision on the prohibition of sex trafficking of children in TVPRA, which contains the clear definition of direct engagements in and the circumstance of financially benefitting from sex trafficking of children provided. Thus, two questions had to be answered in the analysis of each claim: first, whether the conduct of Twitter falls within the range of sex trafficking of children as defined in TVPRA (18 U.S.C. §§ 1591(a)); second, what the exact contour of the exception provided by FOSTA is, notably whether there is any further restricting requirement.
Two sex trafficking claims were lodged by plaintiffs on the basis of both primary liability of sex trafficking of children (claim one) and beneficiary liability (claim two). Under TVPRA’s provision on sex trafficking of children, direct sex trafficking (i.e. the circumstance where the primary liability of sex trafficking of children) refers to the conduct of knowlingly and directly recruiting, enticing, harbouring, transporting, providing, obtaining, advertising, maintaining, patronizing, or soliciting by any means a person under 18 into commercial sex act; beneficiary liability, on the other hand, means to fianancially benefit from knowingly participating in a venture that engages in sex trafficking of children. While the first form requires the conduct to be directly against the person, beneficiary liability covers a broader range of acts and ommissions indirectly related to sex trafficking of children. They were analyzed accordingly.
Claim one (primary liability) was dismissed due to the failure to demonstrate Twitter’s conduct was against the persons (the plaintiffs) rather than the videos, as the direct engagement that generates primary liability is defined in TVPRA. The Court noted that considering the plain language of the text, the only possibility under this provision is to argue Twitter “advertised” the plaintiffs, yet the plaintiffs did not choose to make such an argument. For these reasons, the plaintiffs failed to prove Twitter had any conduct directed against the persons and the conduct of Twitter does not seem to fall within the range of primary liability. Therefore, there was no need to proceed to the next question. The motion to dismiss this charge was granted.
As for claim two (beneficiary liability), the Court first dealt with the question of under what circumstances would a interactive computer service provider no longer be immuned for the content a third party posts. As the Court recalled, while interactive computer service providers generally enjoy the immunity for the content third-parties post, FOSTA renders the immunity inapplicable vis-à-vis sex trafficking offences. Regarding the argument that such exception to immunity is limited to the criminal context, the Court expressed its disagreements with the case that previously set forth this jurisprudence and contended that no stringent requirement of being in a criminal context is needed in light of the remedial nature of the provision. Therefore, in the current case, if the conduct of Twitter falls under the remit of beneficiary liability defined in TVPRA, 18 U.S.C. §§ 1591(a)(2), the immunity provided by CDA Section 230 will be no longer applicable. To examine whether the conduct of Twitter might constitute beneficiary liability in future proceedings, the Court identified three elements, namely participation in a venture, receipt of a benefit, and mens rea (knew or should have known the venture engaged in sex trafficking of children). These elements were found present through the fact that Twitter failed to take timely action initially, refused to remove the content upon request of the plaintiffs, and received financial benefits through retweets and views. In sum, the Court finds that the plaintiffs have stated a claim for civil liability under the TVPRA on the basis of beneficiary liability and that the claim falls within the exemption to Section 230 immunity created by FOSTA, exposing Twitter to liabilities for the trafficking content posted by its users. This particular claim of the beneficiary liability of sex trafficking of children was able to proceed to the future stages.
The Court also noted with caution that the exception to ICS provider’s Section 230 immunity is only relevant to sex trafficking claims. The motion to dismiss all the alternative claims was granted.
Motion to dismiss the claims is partly denied (claim two) and partly granted (all other claims).
Age: 13 when the videos were filmed; approximately 16 when the videos were disseminated on Twitter.
Age: 13 when the videos were filmed; approximately 16 when the videos were disseminated on Twitter.
Sex trafficking of children (Primary liability)
§1591. Sex trafficking of children or by force, fraud, or coercion
(a) Whoever knowingly-
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person;
[…]
knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).
[…]
§1595. Civil remedy
(a) An individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.
Violation of the Trafficking Victims Protection Reauthorization Act (“TVPRA”), 18 U.S.C. §§ 1591(a)(1) and 1595(a)
The child pornographic videos were posted on Twitter by its users. Instead of blocking or removing these videos immediately, Twitter effectively hosted the content for a period of time and contributed to its dissemination. However, no evidence shows that Twitter knowingly and directly engaged in trafficking of the plaintiffs but benefited financially from its existence.
The claim was dismissed upon the motion by Twitter.
Sex Trafficking (Beneficiary Liability)
§1591. Sex trafficking of children or by force, fraud, or coercion
(a) Whoever knowingly-
[…]
(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),
knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).
[…]
§1595. Civil remedy
(a) An individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.
TVPRA, 18 U.S.C. §§ 1591(a)(2) and 1595(a)
TVPRA, 18 U.S.C. §§ 1591(a)(2) and 1595(a)
The child pornographic videos were made available on Twitter. Twitter did not act upon comments and a complaint reporting the child pornographic content and account. It also did not remove the materials or block the disseminating accounts after the plaintiffs specifically requested it and provided proof of identity and age. Twitter did not directly benefit form sexual exploitation of the plaintiffs, but it did acquire financial benefits as a result of the proliferation of retweets and views of the said content.
The motion to dismiss by Twitter was not granted to this claim. The claim is able to proceed to future stages.
This case presents a typical scenario where interactive computer service providers (“ICS”) indirectly contribute to trafficking for sexual exploitation of children and their victimization process. This case is particularly interesting to examine against the background where trafficking-related conduct is increasingly combined with online information services. The following points are also worth noting:
First, this case provides a legal route of asserting ICS providers’ liability through beneficiary liability, meaning being liable for indirectly supporting the sex trafficking venture and financially benefitting from the act passively without clear collaboration with the principal trafficker or the disseminator but benefit indirectly from the dissemination of the content, the claim of direct engagement in sex trafficking is often not substantiated. Under this circumstance, the conduct of the ICS provider may fall within the remit of beneficiary liability, if the applicable legal framework permits. In this Order, the Court also shed light on how beneficiary liability under Trafficking Victims Protection Reauthorization Act (“TVPRA”) should be understood in the context of social media. It provides valuable references and guidelines on the application of beneficiary liability of sex trafficking through online technologies for future practices.
Second, as one can infer from the arguments presented, another difficult question to determine is whether the element of mens rea is present, with the internet companies arguing they could not have surely known certain content is a product of sex trafficking or they simply do not have the capacity to view the large volume of content they have. This case reiterated the standard of “known or should have known” and illustrated the level of knowledge that could be deduced and inferred from certain facts, such as disregarding certain comments, alerts, and complaints by users, as well as the refusal to remove the content upon request. Similarly, the “tacit agreement” to participate in a venture could also be inferred from the fact of ignoring the alerts and the measures that discourage reporting etc. It shows that the existence of knowledge or intent is not a myth that relies entirely on mere statements that claim such element to be present or not, objective assessments based on the facts remain the key of the determination.. The way the Court construed these concepts demands ICS providers to devote greater efforts in processing alerts, complaints, and requests, make good use of the reporting system, as well as take timely actions thereto. The defense of due diligence is not elaborately discussed in this case.
Last but not least, the fact that this case is still at a early stage of proceeding should be fully appreciated. The Order discussed was issued in response to Twitter’s motion to dismiss the claims rather than the final judgment to determine and allocate liability. As the Court noted, the plaintiffs’ burden of proof is lower at this stage and the claims only need to be “plausible on its face”. It means that the findings in this Order serve as a preliminary inquiry and an affirmation of a possibility, but do not in any sense guarantee the liability in the final outcome. Further developments, such as whether the beneficiary liability claim can be eventually substantiated under further scrutiny, to what extent Twitter is liable for the sex trafficking content, and the type and amount of damages it should bear etc., remain to be seen.