Ninth Circuit Easily Rejects (Most of) a “Predator Access” Lawsuit on Section 230 Grounds–Doe (KB) v. Facebook

November 9, 2026 · by Eric Goldman · in Content Regulation, Derivative Liability, Privacy/Security

This is a FOSTA-and-more claim against Instagram. As I previously summarized, the plaintiff claimed (1) Instagram is a “breeding ground” for sex trafficking, and (2) Instagram’s algorithms matched the criminal with the victim. The plaintiff’s lawyers tried the full range of now-standard Section 230 workaround attempts, arguing everything from design defects to incomplete reporting mechanisms. The district court provided this recap of the case:

Plaintiff Jane Doe alleges that she was a victim of horrific sex trafficking crimes on Instagram, a social media platform owned by Defendant Meta Platforms, Inc. (“Meta”), where she was repeatedly sold for unlawful sex acts over the course of a year. Her trafficker was later convicted in a criminal trial and sentenced to 40 years in prison. Doe now sues Meta, alleging that it facilitated and financially benefited from her sex trafficking, in violation of the federal civil sex trafficking statute, 18 U.S.C. § 1595. Doe also asserts products liability claims for design defect and failure to warn, alleging that Meta defectively designed Instagram because it lacked identity verification procedures and adequate mechanisms to report sex trafficking, as well as failed to provide adequate warnings about the known danger of trafficking on Instagram

On appeal, the Ninth Circuit–in a terse unpublished opinion that doesn’t even bother to summarize the case facts–emphatically rejects all of the Section 230 workarounds, except for the reporting mechanism claim. Because that claim is extremely likely to fail on remand, most likely this case is essentially over.

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1595 Claim. “Section 230 of the Communications Decency Act, 47 U.S.C. § 230, bars Doe’s Section 1595 claim”:

First, Doe alleges that Meta did not “ban sex traffickers from using and posting on Instagram” or take “reasonable steps to abate human trafficking,” which created a “breeding ground” for sex trafficking on Instagram. Yet a failure to “review each user-created profile” to ensure it is not unlawful is “precisely the kind of activity for which Congress intended to grant absolution with the passage of [S]ection 230.”

Second, Doe alleges that Instagram uses “algorithms” that “generate targeted recommendations to its users” and “encourag[e] connections between sex traffickers and vulnerable persons on Instagram.” As the district court correctly explained, however, “Doe ‘cannot plead around Section 230 immunity by framing’ her claim as one involving Meta’s connection algorithms rather than the user-generated content that those algorithms facilitate.”

In a footnote, the court rejects the Anderson v. TikTok workaround: “Contrary to Doe’s assertion, the Supreme Court’s decision in Moody v. NetChoice, LLC, 603 U.S. 707 (2024), did not overrule Dyroff.”

(The lower court had explained: “That those moderation decisions are also protected by the First Amendment does not strip them of their Section 230 immunity. To hold otherwise would effectively render the core of Section 230 a nullity, contrary to Congress’s intent and the plain language of the statute.”)

Products Liability–Lack of Age Authentication. “Doe alleges that Meta failed to include identity and age verification requirements as part of the account setup process. Such requirements implicate Meta’s role as a publisher.”

(The lower court explained: “A platform’s decision as to whether to allow anonymous speech, and the consequent effects on the content of the speech that proliferates on the platform, is a classic publication decision. It is a determination of who may speak, and thus, whose content may be barred on the platform.”)

In a footnote, the court adds:

Doe’s reliance on Lemmon v. Snap, Inc., is misplaced. 995 F.3d 1085 (9th Cir. 2021). As we explained in Grindr, the “duty to avoid designing a product that encouraged dangerous driving [in Lemmon] was fully independent of [the] defendant’s role in monitoring or publishing third-party content, and it did not seek to hold the defendant responsible as a publisher or speaker.” The same is not true here. Identity and age verification requirements are “not independent” of Meta’s “role as a facilitator or publisher of third-party content.”

Products Liability–Inadequate Reporting Mechanisms.

Doe’s design-defects claim based on reporting requirements, however, survives Section 230. Doe alleges that Meta failed to provide “an adequate mechanism to report sex trafficking” or an “immediate response” tool through which Meta would “timely take[] action.” Meta’s Section 230 argument is foreclosed by our decision in Doe 1 v. Twitter, Inc., 148 F.4th 635 (9th Cir. 2025). Because Meta’s “improvement of its reporting mechanism . . . would not necessarily require [Meta] to monitor third-party content,” Meta “is not immune from liability on this claim.”

What? How could the speed of Meta’s response to the reports “not necessarily require Met to monitor third-party content”? As the lower court said, “the asserted duty is not only to create a mechanism by which third-party content may be reported, but to monitor and act on those reports as well. Accordingly, the justification for why Meta may be held liable springs from its failure to monitor, and moderate, the third-party content enabled by Instagram.”

This defective analysis started with Doe 1 v. Twitter, and that ruling’s flaws remain obvious here.

But what does getting around Section 230 do for the plaintiffs? This is the kind of typical Ninth Circuit switcheroo where the claim gets around Section 230 but will fail because there is no affirmative duty to provide a reporting mechanism for sex trafficking or some other kind of “immediate response tool.” So it seems like this claim will easily fail on remand.

Failure-to-Warn.

Section 230 bars Doe’s failure-to-warn claim. Doe alleges that Instagram “lacks any warnings that sex trafficking is rampant” on the platform, that “foreseeable product use included interactions with traffickers,” and that the use of fake accounts might facilitate sex trafficking. Grindr is instructive. There, we determined that Section 230 barred a claim that Grindr “had a duty to warn Doe about the risks of child sexual exploitation on the [application]” because that duty was based on Grindr’s “role as a publisher of third-party content.” Like here, the plaintiff in Grindr did not allege that Grindr had “independent knowledge of a conspiracy.” Nor does a company’s “role as a publisher of third-party content” give it “a duty to warn users of a general possibility of harm resulting from the [application].” It follows that Section 230 bars Doe’s failure-to-warn claim here: Meta did not have a duty to warn Instagram users of the general possibility of harm resulting from users who might use Instagram for a criminal purpose.

In general, the Internet Brands and Beckman cases suggested that failure-to-warn claims should always get around Section 230. The Ninth Circuit has retrenched from that more absolutist position. In a footnote, the court adds:

This is why Doe’s reliance on Doe v. Internet Brands, Inc. is misplaced. There, we determined that Section 230 did not bar a failure-to-warn claim where the defendant “failed to warn of a known conspiracy operating independent of the site’s publishing function.”

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Implications

This is a memo decision, so it doesn’t set any precedent. Still, I think it’s a useful indicator of the status of the Ninth Circuit’s Section 230 jurisprudence.

Section 230 Still Matters in the Ninth Circuit. The Ninth Circuit has swiss-cheesed Section 230 with so many exceptions, yet it still does important work for defendants. Here, several of the standard workarounds to Section 230 didn’t actually help, making this a pretty easy Section 230 ruling (with the reporting mechanism exception).

Predator Access Cases. The Ninth Circuit has consistently shut down claims that services provide too much access to sexual predators. Because this case was ultimately about predator access, it never had a real shot in the Ninth Circuit.

Section 230 and Age/Identity Authentication. The panel says that age and identity authentication obligations violate Section 230 because “[s]uch requirements implicate Meta’s role as a publisher.” If the Ninth Circuit actually believes this, it would be a major blow for many laws and lawsuits pushing for greater age authentication.

Section 230 and Design Defects. The age/identity authentication arguments were framed as design defects, which ran into the Section 230 wall anyway. To me, this is consistent with the Ninth Circuit’s frequent rejection of design defects as Section 230 workarounds, Lemmon v. Snap notwithstanding. I think this decision provides more evidence that the social media addiction design defect arguments will not be well-received in the Ninth Circuit.

Section 230 and Failure-to-Warn. Plaintiffs have assumed that failure-to-warn claims are a free pass around Section 230, even if they are inevitably losers on the prima facie elements. This decision is a reminder that maybe failure-to-warn isn’t the free pass plaintiffs have assumed.

The Anderson v. TikTok Workaround Failed. The plaintiffs are very excited about how the Third Circuit repealed Section 230 in the Anderson v. TikTok case, but that line of thinking has not gone far outside the Third Circuit. This opinion is another rejection of it.

The First Amendment Reinforces These Outcomes. The court didn’t address the First Amendment, but even if the plaintiffs got around Section 230, they would likely hit the First Amendment wall. Simply put, as tragic as the plaintiffs’ stories are, the legal relief they are seeking isn’t available.

The Reporting Mechanism Section 230 Workaround is Unhelpful and Pernicious. The Doe 1 v. Twitter decision was wrong. Plaintiffs can always argue that better reporting systems would have prevented the harm. As a result, as this opinion illustrates, it’s become a reliable workaround to Section 230. If and when the remanded reporting mechanism cases start failing on prima facie grounds or for other reasons–but at higher expense to all parties–it will reinforce that the exception is just another of the Ninth Circuit’s Section 230 switcheroos.

The Wrongdoer Was Punished. A reminder that the plaintiff’s “trafficker was later convicted in a criminal trial and sentenced to 40 years in prison.”

Case Citation: Doe (K.B.) v. Facebook, Inc., No. 25-2246 (9th Cir. Nov. 3, 2026)

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Ninth Circuit Easily Rejects (Most of) a “Predator Access” Lawsuit on Section 230 Grounds–Doe (KB) v. Facebook

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