Section 230 Preempts Another FOSTA Claim–Doe v. Kik

September 1, 2020 · by Eric Goldman · in Content Regulation, Derivative Liability

Kik is a messaging service. “Plaintiff alleges that Defendants have knowledge that sexual predators use its service to prey on minors but have failed to provide any warnings or enact policies to protect minors from such abuses.” The plaintiff alleges she received unsolicited nude photos from adults. However, it’s unclear from the opinion if any senders actually attempted to recruit her for sex trafficking.

The plaintiff sued Kik for a civil claim under 18 USC 1595. Kik defended on Section 230 grounds. The court says that, but for FOSTA, this is an easy Section 230 case:

If not for the nature of Plaintiff’s claims in this case, Defendants would satisfy the elements for CDA immunity: they are an interactive computer service provider, the claim is based upon information provided by another, and the claim would treat Defendants as though they published and solicited the photographs in question….If it were not for FOSTA, Defendants in this case would be completely immune from liability under the CDA.

Congress enacted FOSTA to permit more private lawsuits against Internet services. The question is exactly what FOSTA did–a difficult question to answer because of FOSTA’s terrible drafting. Court opinions trying to navigate the FOSTA/Section 230 interplay are extremely complex and technical in nature, and thus hard to understand.

The relevant language from FOSTA excludes from Section 230(c)(1) “any claim in a civil action under section 1595 of Title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title.” To me, this language makes it clear that any civil claim seeking to get around Section 230 must satisfy the elements of both 1591 (a criminal statute) and 1595 (a civil statute). FOSTA didn’t open the doors to all claims for sex trafficking violations: “Had Congress intended to revoke CDA immunity for all claims involving sex trafficking on websites (as argued by Plaintiff), it could have done so; but it did not. The plain language of the statute removes immunity only for conduct that violates 18 U.S.C § 1591….”

The plaintiff tries to show that Kik violated 1591 because it “participated in a venture” with sex traffickers. 1591 defines that term as “knowingly assisting, supporting, or facilitating a violation of subsection (a)(1)”; 1595 doesn’t define the term. However, 1595 has a “know or should have known” standard, which is more plaintiff-friendly than 1591’s “knowingly” standard. The court says that to allege a 1595 claim that isn’t preempted by Section 230, the plaintiff must establish a 1591 violation–and “section 1591 requires knowing and active participation in sex trafficking by the defendants.” The complaint didn’t make the requisite allegations.

[Also of interest to future defendants: the court says: “Defendants argue that the Congressional history of FOSTA shows that Congress only intended to create a narrow exception to the CDA for “openly malicious actors such as Backpage where it was plausible for a plaintiff to allege actual knowledge and overt participation.” and that a finding of actual knowledge and overt participation in a venture of sexual trafficking is required to defeat CDA immunity. This is consistent with the language of FOSTA.” In a footnote, the court adds: “See 164 Cong. Rec., at S1860-62 (“[FOSTA] is a narrowly crafted bill that would ensure that Section 230 of the Communications Decency Act does not provide legal immunity to websites like Backpage that knowingly facilitate sex trafficking.”); H.R. Rep. No 115-572, at 5 (“general knowledge that sex trafficking occurs on a website will not suffice as the knowledge element must be proven as to a specific victim”).”]

So this opinion is confusing because the court is working through multiple layers of exceptions to the rule:

The plaintiff argued Kik failed to protect her;
Kik cited Section 230 to defend against that claim;
The plaintiff argued that she met the standards of 1595 to get around 230;
Kik argued that she also needed to satisfy 1591 and that Kik lacked the 1591-required scienter; and
The court says that Kik indeed lacked the 1591-required scienter, so Section 230 still applies to the plaintiff’s 1595 claim.

If this makes your head hurt, I totally understand. You are not the only one.

Section 230 geeks will notice that Section 230 is available only if Kik lacked 1591 scienter. This is unusual in the Section 230 doctrine. For other aspects of Section 230(c)(1), defendants qualify for the defense regardless of their scienter. The fact that defendants’ (lack of) scienter is a prerequisite to Section 230 highlights how FOSTA reinstituted the moderator’s dilemma.

The court grants Kik’s motion to dismiss without leave to amend. The plaintiff asked to add negligence and strict liability claims, but those are clearly preempted by Section 230. The plaintiff also apparently wanted to add a failure-to-warn claim to use the Internet Brands workaround to Section 230. The court says: “Plaintiff’s failure to warn claims are inextricably linked to the harmful content solicited and posted by Kik’s users. This is precisely the type of claim for which Congress has determined that interactive computer website providers should be immune.”

Implications

Another thing that makes this case perplexing is that the facts don’t seem to indicate any actual or attempted sex trafficking. In a footnote, the court says “Plaintiff does not allege any facts that would plausibly establish Defendants knew or should have known about her particular situation or that the Identified Kik Users were using Kik for sex trafficking.” Perhaps the court might have approached the opinion differently if the sex trafficking facts had been clearer.

This ruling addresses the same ground as the recent (and uncited) JB v. Craigslist ruling. That case also dealt with the 1591/1595 “participation in a venture” scienter ambiguity. However, in JB, the court said the phrase wasn’t limited by the 1591 scienter requirement, a seemingly directly contrary result to the Kik ruling. Craigslist still won the JB case on other grounds (lack of causation). Given the cases’ apparent conflict, it seems likely the 1591/1595 scienter issue will make more court appearances. FWIW, I think the Kik court got it right. My view is that it was always clear during FOSTA’s development that civil plaintiffs had to satisfy the more rigorous standards of 1591–essentially prove that a crime occurred, but using the lower proof standards available to civil claims.

This ruling may have some bearing on the EARN IT Act. I believe that the Kik messages at issue in this case were private messages that should be governed by the ECPA, which means that Kik wasn’t allowed to read them. In other words, the plaintiff sought to hold Kik liable for private messages that Kik could not have blocked or possibly prevented. This gets into the territory addressed by the EARN IT Act, which seemingly attempts to remove Section 230 protection for private messages (that contain CSAM), and thus tries to get Internet services to control the content of private messages. This ruling indicates that Section 230 applies to private messages, which the EARN IT Act would scale back–with uncertain, but almost certainly unwanted, consequences.

Case Citation: Doe v. Kik Interactive, Inc., 482 F.Supp.3d 1242 (S.D. Fla. Aug. 31, 2020)

More SESTA/FOSTA-Related Posts:

Section 230 Preempts Another FOSTA Claim–Doe v. Kik

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