Catching Up on Recent FOSTA Developments (None of Them Good)
The number #1 question I get whenever I discuss FOSTA with folks who aren’t familiar with it: did Congress know what it was doing? Well, the answer is complicated. Many things have gone wrong with FOSTA, and those outcomes were predictable and, indeed, predicted for Congress during FOSTA’s development. This makes Congress complicit in the consequences, whether intended or not (see Kendra Albert, Enough About FOSTA’s ‘Unintended Consequences’; They Were Always Intended). For more background, read my primer about FOSTA and 230.
As the GAO Report indicates (discussed below), FOSTA’s worst tragedy is that it has hurt multiple communities without any benefits to any victim communities. From a judicial standpoint, FOSTA’s terrible drafting has produced entirely predictable chaos in the courts. Some of the confusion is due to plaintiffs stretching FOSTA to reach tertiary defendants far removed from the victimization or reach facts (like republication of commercial pornography) that seem outside the statutory definitions. Unsurprisingly, courts are also struggling with FOSTA’s core drafting ambiguity (that was highlighted for Congress during its deliberations) about the level of scienter applicable to the sex trafficking civil claim.
There has been a lot of activity in court in the past few months–so much that I couldn’t blog it all contemporaneously. This blog post will round up eight FOSTA rulings from 2021–consisting of hundreds of pages of court opinions–I haven’t previously blogged. Despite this post’s length, the only thing you will know with confidence after reading this post is that FOSTA is not a good solution to any problem.
Students: this post surfaces numerous potential paper topics. Cases are already going up on appeal, so there will be a lot more law coming on these issues soon.
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THE MINDGEEK LITIGATION
Ruling #1: Doe v. Mindgeek USA Inc., 2021 WL 4167054 (C.D. Cal. Sept. 3, 2021)
[Note: this is the most detailed case summary in this post because I wrote it first and then the subsequent rulings kept coming so fast that this got stuck in my draft folder for months.]
Mindgeek runs pornography sites including Pornhub, RedTube, and YouPorn. The plaintiffs allege a variety of misconduct. Mindgeek defended on Section 230 grounds. That doesn’t go well.
Section 230. Like the J.B. v. Craigslist case, the court looks at the 1591/1595 scienter dichotomy. I covered this issue in extensive detail in the J.B. case, so read my post first if you need the background. This court comes down on the 1595 side, so constructive knowledge of sex trafficking victimization defeats the Section 230 defense. In doing so, the court cites to a prior ruling in the JB case, before the JB court reconsidered the matter and reversed its position. The court expressly rejects the Kik opinion. This ruling conflicts with the more recent reconsidered JB ruling, something the court expressly addresses in its reconsideration motion discussed below.
Participating in a sex trafficking venture. The court finds the Doe v. Twitter ruling persuasive and says:
Plaintiff plausibly alleges that Defendants generally enable child sex trafficking on their platforms and failed to remove the child pornography depicting Plaintiff, sufficiently pleading that Defendants participated in a venture with traffickers….Plaintiff here alleges that Defendants enable child pornography by permitting large amounts of human trafficking and commercial sexual exploitation material on its platform, despite having the ability to monitor it…Plaintiff alleges that Defendants enable child sex
trafficking when they enter into agreements with traffickers to share proceeds of advertisement revenue earned from child pornography videos posted to their websites, and actively employ tactics to make it difficult for law enforcement to locate traffickers
As I mentioned in my post on the Twitter case, saying that a website knowingly participates in a sex trafficking venture by not honoring takedown notices creates significant opportunities to weaponize takedown notices.
The court also positively cites the allegation that Mindgeek “make[s] it easy for users to find child pornography” based on various video descriptions, such as “less than 18,” “the best collection of young boys,” “underage,” “cp,” “no 18,” “young,” “middle school girls,” “middle schools,” and “middle student.” While these search terms are clearly not acceptable, it’s also obvious that these phrases could describe completely legal videos as part of exaggerated or fantastical marketing.
The complaint enumerates specific videos of the plaintiffs. The court cites the following allegations:
First, Plaintiff alleges that Defendants’ moderators reviewed, approved, and uploaded at least one of the child pornography videos of Plaintiff to RedTube. Second, when Defendants uploaded one of the videos of Plaintiff to RedTube, the video title contained the word “teen,” was tagged with the word “teen,” and was categorized as “teen” pornography, indicating how youthful Plaintiff appeared. Third, Plaintiff alleges that her ex-boyfriend has posted more than 500 images and videos victimizing young women to Defendants’ platforms and other websites, with Defendants’ approval. Finally, the videos of Plaintiff were on Defendants’ platforms for nearly a month before they were removed, providing ample time for Defendants to identify the videos as child pornography and remove them.
Thus, it’s “plausible that Defendants had ‘a continuous business relationship’ with traffickers and Plaintiff’s ex-boyfriend, and that Defendants and traffickers ‘have established a pattern of conduct or could be said to have a tacit agreement.'”
Benefit from the venture. “Plaintiff alleges that Defendants monetize the posting of child pornography through advertising revenue, fee-based subscription services, and selling user data,” including the plaintiff’s video specifically.
Scienter about sex trafficking. The court credits the allegations that “Defendants reviewed, approved, and featured the videos of Plaintiff on their platforms; the video depicting Plaintiff that Defendants uploaded to RedTube had the word “teen” in its title and was categorized as teen pornography, indicating how young Plaintiff appeared in the video; and Plaintiff’s ex-boyfriend had posted hundreds of videos to Defendants’ platforms, victimizing other women. This was all done, according to Plaintiff, when Defendants had actual knowledge of the pervasiveness of child pornography on their platforms.” Even if the video at issue wasn’t made in connection with commercial sex, “posting child pornography is a commercial sex act.”
Section 230 for non-FOSTA Claims.
Following the Roommates.com and ML v. Craigslist rulings, the court says “Defendants’ conduct, as Plaintiff alleges, has materially contributed to the creation of child pornography on its platforms” based on these allegations:
Defendants: (1) established guidelines for categories, tags, and titles that Defendants direct traffickers to create and promote child pornography to target the “right” fans; (2) know that child pornography is repeatedly posted to its platforms; (3) share the proceeds of such content with traffickers Defendants have relationships with; (4) use a VPN and a Tor site to anonymize web traffic, making it difficult for law enforcement to locate child pornography producers; and (5) developed a private messaging system so that traffickers can exchange child pornography on their websites and evade law enforcement. These facts, coupled with the other allegations in Plaintiff’s FAC that Defendants curate video playlists with titles such as “less than 18,” “the best collection of young boys,” and “under-age,” clearly indicate Defendants’ role in the development of child pornography on their platforms.
So obviously this is a quite expansive view of what it means to “create” third-party content. Every point deviates from Section 230 jurisprudence. Establishing tags for “illegal” content (#1) was expressly rejected in the Ninth Circuit Dyroff case; #2 (knowledge of problematic content) is supposed to be completely irrelevant to Section 230; #3 (paying for content) gets straight to the heart of Internet business models; and #4 and #5 have absolutely nothing to do with content creation at all. So there’s no doubt that this judge is twisting the law to accommodate the victim’s horrifying circumstances. The court tries to explain:
This conduct goes far beyond the neutral tools the Ninth Circuit has protected within the ambit of Section 230 immunity. Indeed, the neutral tools the Ninth Circuit has protected are those that “did not ‘encourage the posting of [unlawful] content’ by merely providing a means for users to publish [what] they created.” But Plaintiff alleges that Defendants’ guidance and directions to users call directly for child pornography. The suggestion that Defendants merely provide a neutral platform for third parties to post whatever they like simply cannot be squared with allegations that aspects of Defendants’ platforms facilitate both the dissemination of child pornography (which is unlawful in and of itself, see 18 U.S.C. § 2252A) and the development of child pornography.
I’m still not seeing how the facts allege that “Defendants’ guidance and directions to users call directly for child pornography.”
This Section 230 ruling puts Mindgeek into a major legal conundrum. Because negates Section 230 on two independent grounds (FOSTA and content creation), Mindgeek has two separate reasons it could lose. Further, based on the extrapolations the judge accepted, this judge is likely to make all inferences in favor of the plaintiff (beyond the standard inferences required in motions to dismiss). Thus, unless Mindgeek believes it can defeat both issues on appeal, it may be motivated to settle.
Other. Without Section 230’s protection, a slew of other claims become tenable. They survive other than the 2258A claim (it doesn’t support a private right of action, the 17200 claim (insufficient allegation of financial loss), and unjust enrichment (the court believes it’s not a separate cause of action–a point of significant confusion).
Ruling #2: Doe v. MindGeek USA Inc., 2021 WL 5990195 (C.D. Cal. Dec. 2, 2021)
The defendants sought reconsideration of the September ruling and, failing that, a certificate of appealability. The court denies both.
The Gonzalez & ML Rulings. Note: I never blogged the Ninth Circuit’s Gonzalez v. Google ruling because it was a 3-opinion hairball from a 3-judge panel (running 167 pages), which I figured the Ninth Circuit would surely take en banc. Instead, the Ninth Circuit denied en banc a couple of weeks ago, leaving an exceptionally messy set of opinions in place. Ugh.
Applying Gonzalez, the court says “Plaintiff here alleges that Defendants do far more than employ neutral tools that treat videos depicting child pornography the same as any other video on their platforms. Instead, Plaintiff alleges that Defendants solicit, review, approve, and feature such videos on their platforms.” The defendants also allegedly encourage illegal content by ignoring all of users’ CSAM-related coded phrases. The complaint sufficiently alleges that “Defendants’ conduct rises to a level in which they ‘specify or prompt the type of content,’ in this case child pornography, ‘to be submitted.'” (If you’re wondering about that standard, because every UGC site prompts the type of content it wants, that’s a Gonzalez problem).
The court also distinguishes ML v. Craigslist (discussed again below), concluding that the allegations are sufficient that “Defendants have designed their platforms for an illicit purpose and therefore make a material contribution to the creation of child pornography….the allegations establish that part of Defendants’ operating model depends upon the development and creation of child pornography and that their tools are designed to elicit that exact content.”
The defendants argued that Roommates’ “encourage illegal content” standard only applied if the service required or compelled users to provide only illegal content. That’s exactly what Roommates.com says, but this court rejects it with this incredibly dubious hypothetical (Reminder: disseminating CSAM is a federal crime, so this hypothetical is truly hypothetical):
Take, for example, a situation in which a hypothetical defendant operates a website entitled childpornography.com. The website instructs users how to make pornography videos appealing to its users; reviews and approves each video; features child pornography videos on the front page of their platforms; provides tags and playlists to identify and compile child pornography specifically; employs tools to evade law enforcement; provides ample proceeds to those that post; and publicly acknowledges that removal of those videos would severely harm its bottom line, but does not explicitly require users to post child pornography. Under Defendants’ interpretation, such a platform would escape all civil liability, despite instructing and encouraging users to post such content on their platforms.
(The “lawless no-man’s land” and “all purpose get-out-of-jail-free card” strawman metaphors make appearances here. They are obvious tells for a judge who simply chooses to forget that Section 230 has statutory exceptions).
The 1591/1595 Scienter Level. The court explains why it disagrees with the JB ruling, which reached a directly opposite result. The JB ruling means that “Section 1591 would require civil plaintiffs, seeking relief under a remedial provision of the Communications Decency Act, to meet a criminal mens rea standard.” Yes, as the JB opinion explains, this is exactly what Congress thought it was doing and actually did. I agree that it’s weird to incorporate a criminal mens rea standard with a civil claim, but we pointed this out to Congress and they proceeded anyways. The court adds that “FOSTA’s remedial purpose cannot be ignored….Remedial statutes must be interpreted broadly to effectuate their purpose.” Finally, the complaint pleads actual knowledge by the defendant.
Certificate of Appealability. The court says that whether defendants are content creators is a fact question, not a question of law. Plus, because of the court’s interpretation of 1591/1595, the Section 230 question wouldn’t resolve the case.
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THE SALESFORCE LAWSUITS
[A reminder that Salesforce’s CEO Marc Benioff has repeatedly publicly criticized Section 23o–even though Salesforce keeps invoking it in FOSTA cases. ¯\_(ツ)_/¯ ]
Ruling #1: A.B. v. Salesforce, 2021 U.S. Dist. LEXIS 181885 (S.D. Tex. March 22, 2021)
This lawsuit alleges tertiary liability: sex traffickers (the primary wrongdoer) advertised on Backpage (the secondary wrongdoer) and Salesforce provided various services to Backpage (the tertiary wrongdoer). The court sides with the 1595 lower scienter standard on the 1591/1595 divide and says it was adequately alleged because “Plaintiff has alleged that Salesforce ‘was in a position to learn, and in fact did learn, about illegal business practices of Backpage once the venture was formed [and] armed with this knowledge, Salesforce chose to financially benefit by doing business with Backpage.'” The court also says Section 230 may not protect Salesforce because it may not be an ICS provider (???), and the allegation “that Salesforce directly and ‘knowingly benefitted’ from providing services to facilitate sex trafficking…would elevate Salesforce’s role beyond that of a mere publisher.”
The court does reject the negligence claims for lack of duty. In Texas, “a business has no duty to monitor what its customers do with its products post-sale or to prevent them from engaging in criminal acts,” and there may not be any civil aiding-and-abetting liability. “Salesforce has no duty not assist Backpage, which allegedly went on to commit a criminal act utilizing its products or services.” Finally, the court questions proximate causation:
Plaintiffs admit that sex trafficking on Backpage’s website was already occurring before—and independent of—its use of Salesforce’s products. Moreover, the TAC does not allege that Salesforce played a role in the trafficking itself, or in designing or sanitizing the ads on Backpage, which were the key factors that the Plaintiffs have argued caused the actual injury….The TAC does not adequately bridge the causal gap between Salesforce selling marketing tools to Backpage, and a third-party posting an ad on Backpage to commit sex trafficking. Plaintiffs have not alleged facts demonstrating how Salesforce’s marketing advice and/or products were essential to the ads that trafficked Plaintiffs.
In a footnote, the court says: “under Plaintiffs’ theory of causation as pleaded, any vendor of common business services, like phone providers, payroll companies, or computer-manufactures, could be a causative agent, since Backpage could have used those services in some facet of its course of conducting illegal activity.” This is exactly what FOSTA plaintiff lawyers are actively trying to do. It does confuse me how the court can recognize the proximate causation problem and yet still say that Section 230 doesn’t apply–those conclusions seems to have some implicit tension.
Note that this ruling came out before the Texas Supreme Court ruling in In re Facebook. I’m not sure what, if anything, that ruling does to this one.
Ruling #2: Doe v. Salesforce.com, Inc., 2021 WL 6143093 (Cal. App. Ct. Dec. 30, 2021)
This ruling came out right before the New Years holiday, so it’s not gotten a lot of attention. Further, it’s unpublished, so it’s not likely to resolve much despite being an early appellate ruling. Nevertheless, in what seems to be a direct contradiction to the AB v. Salesforce opinion I just covered, the court dismisses the claim on Section 230 grounds.
ICS Provider. This term “applies to websites that allow third party users to post content, as plaintiffs acknowledge, but it is by no means limited to websites, or to websites of that kind.” The court concludes that Salesforce qualifies as an “access software provider.” I think this fits with the statutory language, but it’s pretty rare for courts to find that services are “access software providers.” Other cases in that genre include the Henderson case (on appeal), the Zoom case, and the Kaspersky case. Given the California Supreme Court’s Barrett v. Rosenthal precedent, the court could have also said that Salesforce qualifies as an ICS user.
Publisher/Speaker Claims & Third Party Content. “In alleging that Salesforce failed to prevent Backpage from using Salesforce tools in Backpage’s business of soliciting ads from sex traffickers (ads that allegedly caused the plaintiffs to be sexually trafficked and exploited), plaintiffs essentially seek to hold Salesforce responsible as a publisher of information in ads that Backpage customers posted on Backpage. That plaintiffs would hold Salesforce liable as a publisher is clear from plaintiffs’ allegations that Salesforce’s liability arises from its “[f]ailure to monitor for and safeguard from the use of its platform” by Backpage for sex trafficking and its “[f]ailure to monitor its customer base to identify participation in an illegal venture,” which would require Salesforce to monitor not just Backpage’s use of the CRM platform to communicate with Backpage customers, but also the ads posted on Backpage.”
The state sex trafficking claims do not fit into any FOSTA exception. The plaintiffs unsuccessfully tried to make some progress interpreting the headings for Section 230(c)(2)(A) and the 230 FOSTA exception.
The plaintiffs didn’t initially plead a 1595 case. The appeals court doesn’t give them the chance to amend the complaint because they don’t show how they would contend with the 1591 requirements.
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M.L. V. CRAIGSLIST LITIGATION
These two lengthy and complicated rulings, coming out days after I finished my Doe v. Mindgeek draft but before I posted it, were the reason why my initial blog post got stuck.
Ruling #1: M.L. v. craigslist Inc., 2021 WL 5217115 (W.D. Wash. Sept. 16, 2021)
This ruling addresses Craigslist’s motion to dismiss. This ruling is extremely long and technical, and it involves a panoply of state anti-trafficking/prostitution laws I’ve never encountered before.
Negligence. Citing Gonzalez, the court says “plaintiff’s failure to warn allegation would require craigslist to monitor and review third party content. The Ninth Circuit has explained that providing a platform for communication services and providing the means for others to publish information fall within the functions of a publisher. Similarly, reviewing, editing, and deciding whether to publish, exclude or withdraw third-party content are the functions of a publisher.”
Strict Liability. Also preempted by Gonzalez. “Plaintiff’s strict liability claim seeks to hold craigslist liable for accepting and displaying illegal third-party content and failing to delete this content despite knowing of its existence. This claim would hold craigslist liable as a publisher of third-party content. Plaintiff’s strict liability claim does not allege that craigslist specifically targeted the sex trafficking ads or that it designed its website for this purpose or otherwise materially contributed to the post’s unlawfulness.”
Criminal Profiteering. Some of the claims fail for Craigslist’s lack of actual knowledge of trafficking or because of Section 230. For example, “plaintiff seeks to hold craigslist liable for Leading Organized Crime based on craigslist allowing illegal advertisements to be posted and knowingly failing to remove these illegal posts. However, plaintiff does not allege that craigslist created the content of the posts, directed the traffickers to create the posts, or created its platform with the intent of attracting illegal content.” However, some claims survive: “Plaintiff’s claim based on promoting prostitution in the first degree, seeks to hold craigslist liable for knowingly profiting from prostitution….Plaintiff’s claims based on promoting prostitution in the second degree, seek to hold craigslist liable for providing instructions regarding how to avoid detection and for purportedly profiting from prostitution.” Note that the surviving claims are based on laws that were on the books when FOSTA was passed, so presumably those claims were tenable with or without FOSTA.
Ruling #2: M.L. v. craigslist Inc., 2021 WL 5205578 (W.D. Wash. Sept. 16, 2021)
This ruling involves summary judgment motions from both Craigslist and a hotel. It’s heavily redacted (over 8 of the 27 pages), so it’s hard to know the full scope of the ruling. In general, the court limits the plaintiff’s damages and otherwise generally rejects summary judgment on the statute of limitations…despite this case involving activity from 2010 and before.
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THE DOE V. REDDIT LITIGATION
Doe v. Reddit, Inc., 2021 WL 5860904 (C.D. Cal. Oct. 7, 2021)
This is a putative class action claiming that Reddit hosted CSAM. For example, Doe 1 claims that she reported CSAM to Subreddit moderators and they responded slowly, and then the removed content immediately reappeared. Reddit primarily defended on Section 230 grounds.
To get around Section 230, the plaintiffs alleged:
Reddit is an information content provider because of Reddit’s (1) “refusal to enforce its policies,” (2) provision of “karma” awards for subreddits featuring CSEM, (3) pseudonymous, private messaging system that allows evasion of law enforcement, (4) “elevation” of subreddits involving CSEM, and (5) use of “barely-trained moderators who failed to enforce its policies and propagated the spread of” CSEM.
The court responds:
Many allegations that Plaintiffs point to do not speak to whether Reddit “materially contributed” to the CSEM because the allegations relate to “neutral tools.” Karma awards, which are an aggregate metric representing how many user votes a user has received, and pseudonymous, private messaging apply broadly across Reddit and do not play any special role in the illegality of the CSEM. Nor does the Court believe that having a reporting tool without a comment section amounts to “materially contributing” to users posting CSEM on its website.
The court is right, of course, but by now it should be apparent that courts aren’t really sure what the “material contribution” or “neutral tools” standards from Roommates.com (as reified by Gonzalez) mean. This means plaintiffs keep recycling arguments that have failed in the past and are stretching Section 230 in ways that could lead to break-points.
The court then addresses Reddit’s relatively unique community-based content moderation approaches. That’s an encouraging move, but I doubt Reddit is thrilled with this discussion:
The remaining issue is whether Reddit’s use of community moderators causes Reddit to material contribute to users posting CSEM on its website. First, the Court notes that having community moderators instead of company moderators does not appear to the Court to have any bearing on whether Reddit is responsible for users posting CSEM on its website. In theory, a very highly trained set of committed community moderators could create an effective system for taking down CSEM.
Plaintiffs’ more promising argument is that Reddit’s community moderators are poorly trained, and this means Reddit materially contributes to users posting CSEM on its website. Plaintiffs allege that community moderators are slow, can engage in “seemingly arbitrary behavior,” can have difficulty communicating with Reddit administrators, and may be overruled by Reddit when moderators find that content violates Reddit’s Content Policy. But the Court notes that these allegations do not appear to be specific to Reddit’s treatment of CSEM; rather, the complaints about Reddit’s use of community managers generally relate to handling of content that violates Reddit’s Content Policy….Reddit does not have a special way of handling CSEM that is particularly permissive relative to other kinds of content. The allegations against Reddit here are not sufficiently targeted such that there is “responsibility for what makes the displayed content illegal.”
What is the court saying? That there are circumstances where Reddit could “materially contribute” to content illegality because its independent community moderators aren’t very good at content moderation? That can’t possibly be right under any circumstances.
The plaintiffs claimed Reddit community moderators who uploaded CSAM are Reddit’s agents, but “there is no allegation that Reddit gave authority to the moderators to post CSEM or that they appeared to be agents of Reddit as they were posting CSEM.”
Thus, Section 230 preempts the unjust enrichment, distribution of private sexual materials, and IIED claims. For example, the IIED claim was predicated on Reddit knowingly tolerating CSAM on its site. Section 230 allows preempts the CSAM civil claim (18 U.S.C. § 2252A) because only the federal criminal CSAM claims are exempted from 230.
The court then turns to the FOSTA claim and, on the 1591/1595 divide, it sides with the cases saying that 1591’s higher scienter applies (cites to JB v. G6, Doe v. Kik, and ML v. Craigslist). The plaintiffs’ allegations don’t clear that bar “where Reddit is not accused of having made a business deal with the alleged traffickers – and did not have any monetary relationship with those traffickers.”
The plaintiff did not contest the dismissal and instead has appealed the case to the Ninth Circuit.
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THE J.B. LITIGATION
J.B. v. G6 Hosp., LLC, 2021 U.S. Dist. LEXIS 240543 (N.D. Cal. Dec. 16, 2021)
The court severs Craigslist from the hotel defendants, which allows the plaintiff to appeal Craigslist’s dismissal while continuing to pursue the hotels. The court also grants the plaintiff a certificate of appealability, letting the 1591/1595 issue go up on appeal to the Ninth Circuit.
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THE GAO STUDY
When Congress passed FOSTA, it ordered the GAO to produce a report on how litigants were using their new tools. The report was due in April 2021. 2 months later, GAO delivered its report, “SEX TRAFFICKING: Online Platforms and Federal Prosecutions.” The report mostly reinforces what we already knew, but still, it (intentionally or not) paints a damning picture of FOSTA.
The report notes some of the problems created by FOSTA:
- “[The Backpage seizure and FOSTA’s signing] led many who controlled platforms in this market to relocate their platforms overseas. Additionally, with backpage.com no longer in the market, buyers and sellers moved to other online platforms, and the market became fragmented.”
- “gathering tips and evidence to investigate and prosecute those who control or use online platforms has become more difficult due to the relocation of platforms overseas, platforms’ use of complex payment systems, and the increased use of social media platforms.” [To me, this is one of FOSTA’s biggest faults. In combination with Backpage’s shutdown, FOSTA has made it harder to rescue victims, and in turn, law enforcement officers don’t invest as much in the rescue process. This entirely foreseeable consequence, which Congress was warned, is counterproductive to FOSTA’s stated goals.]
- “Criminal restitution has not been sought and civil damages have not been awarded under section 3 of FOSTA. In June 2020, DOJ brought one case under the criminal provision established by section 3 of FOSTA for aggravated violations involving the promotion of prostitution of five or more people or acting in reckless disregard of sex trafficking. [This is the cityxguide case, US v Martono] As of March 2021, restitution had not been sought or awarded. According to DOJ officials, prosecutors have not brought more cases with charges under section 3 of FOSTA because the law is relatively new and prosecutors have had success using other criminal statutes,” including racketeering and money laundering. [Again, this is damning. There never was a bona fide use case for FOSTA that wasn’t already covered by existing law. Later, the report says the DOJ may use FOSTA more because (1) it has higher punishments, and (2) charge-stacking can help win more cases. We haven’t seen that yet, and these are not exactly the best reasons to cause all of FOSTA’s other problems.]
- “Finally, in November 2020 one individual sought civil damages under a number of constitutional and statutory provisions, including section 3 of FOSTA. [USA v. Brooks, No. 4:20-CV-40148, Doc. 1, Complaint (D. Mass. Nov. 27, 2020); Brooks v. D’Errico, No. 4:20-CV-40148, Doc. 71, Order of Dismissal (D. Mass. Mar. 22, 2021); : Brooks v. Love, et al., 2021 WL 1092634 (D. Mass. Mar. 22, 2021); Brooks v. Delaney, et al., 2021 WL 1092135 (D. Mass. Mar. 22, 2021); Brooks v. Gilman, et al., 2021 WL 1092640 (D. Mass. Mar. 22, 2021); Brooks v. D’Errico, et al., 2021 WL 1092644 (D. Mass. Mar. 22, 2021); Brooks v. Metro. Sec. Serv. Inc., et al., 2021 WL 1092636 (D. Mass. Mar. 22, 2021)] However, in March 2021, the court dismissed the case without awarding damages after it had granted defendants’ motions to dismiss.” [Of course, as the rest of this post shows, FOSTA civil litigation has picked up and is now a major locus of judicial activity.]
[A note to the criminal prosecutions: “The first case where DOJ charged a violation under section 3 of FOSTA was in June 2019 in the USA v. Palms, No. 4:19-CR-00103 (N.D. Ok. June 6, 2019). However, we excluded this case from our review because DOJ did not charge an “aggravated” violation under 18 U.S.C. § 2421A(b) (which we focus on in this report); and the defendant’s motion for judgment of acquittal as to two of the counts, including the alleged § 2421A(a) violation, was granted by the judge, and these counts were therefore not submitted to the jury for a verdict.”]
The report says that there have not been more civil cases because: (1) the law is untested, (2) bringing lawsuits can cause revictimization, (3) civil cases sometimes follow criminal convictions, of which there have been none, and (4) plaintiffs can’t gather the evidence. ALL OF THESE PROBLEMS WERE IDENTIFIED FOR CONGRESS BEFORE FOSTA.
The report includes this useful chart to keep everything straight. The standard reminder that Backpage was shut down BEFORE FOSTA became law.
* * *
More SESTA/FOSTA-Related Posts
* Section 230 Preempts Claims Against Omegle–M.H. v. Omegle
* To No One’s Surprise, FOSTA Is Confounding Judges–J.B. v. G6
* FOSTA Claim Can Proceed Against Twitter–Doe v. Twitter
* FOSTA Survives Constitutional Challenge–US v. Martono
* 2H 2020 Quick Links, Part 4 (FOSTA)
* Justice Thomas’ Anti-Section 230 Statement Doesn’t Support Reconsideration–JB v. Craigslist
* Sex Trafficking Lawsuit Against Craigslist Moves Forward–ML v. Craigslist
* Section 230 Preempts Another FOSTA Claim–Doe v. Kik
* Section 230 Protects Craigslist from Sex Trafficking Claims, Despite FOSTA–JB v. Craigslist
* Facebook Still Can’t Dismiss Sex Trafficking Victims’ Lawsuit in Texas State Court
* Craigslist Denied Section 230 Immunity for Classified Ads from 2008–ML v. Craigslist
* 2H 2019 and Q1 2020 Quick Links, Part 3 (FOSTA/Backpage)
* New Paper Explains How FOSTA Devastated Male Sex Workers
* FOSTA Constitutional Challenge Revived–Woodhull Freedom Foundation v. US
* New Civil FOSTA Lawsuits Push Expansive Legal Theories Against Unexpected Defendants (Guest Blog Post)
* Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–Doe v. Salesforce
* Latest Linkwrap on FOSTA’s Aftermath
* Section 230 Doesn’t End Lawsuit Claiming Facebook Facilitated Sex Trafficking–Doe v. Facebook
* New Essay: The Complicated Story of FOSTA and Section 230
* Who Benefited from FOSTA? (Spoiler: Probably No One)
* FOSTA’s Political Curse
* FOSTA Doesn’t Help Pro Se Litigant’s Defamation Claim Against Facebook
* Constitutional Challenge to FOSTA Dismissed for Lack of Standing (Guest Blog Post)
* An Update on the Constitutional Court Challenge to FOSTA–Woodhull Freedom v. US (Guest Blog Post)
* Indianapolis Police Have Been “Blinded Lately Because They Shut Backpage Down”
* Constitutional Challenge Against FOSTA Filed–Woodhull v. US (Guest Blog Post)
* Catching Up on FOSTA Since Its Enactment (A Linkwrap)
* More Aftermath from the ‘Worst of Both Worlds FOSTA’
* ‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration
* Backpage Loses Another Section 230 Motion (Again Without SESTA/FOSTA)–Florida Abolitionists v. Backpage
* District Court Ruling Highlights Congress’ Hastiness To Pass ‘Worst of Both Worlds FOSTA’– Doe 1 v. Backpage
* More on the Unconstitutional Retroactivity of ‘Worst of Both Worlds FOSTA’ (Guest Blog Post)
* Senate Passes ‘Worst of Both Worlds FOSTA’ (Linkwrap)
* Why FOSTA’s Restriction on Prostitution Promotion Violates the First Amendment (Guest Blog Post)
* SESTA’s Sponsors Still Don’t Understand Section 230 (As They Are About to Eviscerate It)
* Can the ‘Worst of Both Worlds FOSTA’ Be Salvaged? Perhaps…and You Can Help (URGENT CALL TO ACTION)
* Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)
* What’s New With SESTA/FOSTA (January 17, 2018 edition)
* New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
* How SESTA Undermines Section 230’s Good Samaritan Provisions
* Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
* Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)
* Another SESTA Linkwrap (Week of October 30)
* Recent SESTA Developments (A Linkwrap)
* Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
* An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
* The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
* Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
* My Senate Testimony on SESTA + SESTA Hearing Linkwrap
* Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
* Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
* Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
* How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
* Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
* Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
* The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
* WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity