Omegle Denied Section 230 Dismissal–AM v. Omegle
The court summarizes the facts:
A.M. was eleven years old in 2014 when Omegle, a “free online chat room that randomly pairs strangers from around the world for one-on-one chats,” paired her with Ryan Fordyce, a man in his late thirties. Over the next three years Fordyce forced A.M. to send pornographic images and videos of herself to him, perform for Fordyce and his friends, and recruit other minors for Fordyce to abuse. Fordyce threatened A.M. that if she reported him, he would release the videos and pictures and she would get arrested….Fordyce has been
criminally charged and is awaiting sentencing.
In fact, Fordyce was sentenced to 8+ years in jail. Nevertheless, the plaintiff sued Omegle. Omegle moved to dismiss. The court denies the motion on Section 230 grounds but dismisses the FOSTA claims.
ICS Provider/User. “Omegle is a website and comfortably fits the definition.”
Publisher/Speaker Claims. The court says Lemmon v. Snap is the “most important case for resolving this issue of Section 230 liability.” The court says:
Omegle could have satisfied its alleged obligation to Plaintiff by designing its product differently—for example, by designing a product so that it did not match minors and adults. Plaintiff is not claiming that Omegle needed to review, edit, or withdraw any third-party content to meet this obligation.,,,
it similarly does not matter that there were ultimately chats, videos, or pictures sent from A.M. to Fordyce….What matters for purposes of those claims is that the warnings or design of the product at issue led to the interaction between an eleven-year-old girl and a sexual predator in his late thirties…
In order to meet the obligation A.M. seeks to impose on Omegle, Omegle would not have to alter the content posted by its users—it would only have to change its design and warnings.
It’s true that a service could choose to segregate adult users from minor users, but (1) this would require age authentication, which would create serious barriers to Omegle’s usage, expose users to different privacy and security risks (which is ironic if the goal is to protect minors), still not be perfect at segregating minors, change the nature of its service (which relies on random matching as a core feature), and increase the service’s costs (possibly prohibitively); (2) as I’ve explained before, age authentication usually requires identity authentication, which erects even more barriers to usage, increases costs even more, and exposes users to even greater privacy and security risks; and (3) this redesign would assume all adults are predators and all minors are victims, but there are many socially beneficial circumstances where minors and adults can talk with each other (see, e.g., the old-school Reno v. ACLU Supreme Court opinion, which said that it was unconstitutional to try to segregate minors from adult conversations). So the court’s casual statement (“Omegle could have satisfied its alleged obligation to Plaintiff by designing its product differently”) actually lumps together major technological, social, and constitutional considerations into one seemingly easy problem to solve. It’s not.
Third-Party Content. The court says:
Plaintiff’s case does not rest on third party content. Plaintiff’s contention is that the product is designed a way that connects individuals who should not be connected (minor children and adult men) and that it does so before any content is exchanged between them.
This is obviously wrong. Consider this thought exercise: Imagine that Omegle matched a minor with an adult but never allowed them to communicate with each other (no text, no audio, no video). According to this court’s argument, if the problem is the matching and not the content, then Omegle violated the alleged duty to the minor simply by making this “match.” Of course, this makes no sense. The minor has not been harmed in this circumstance and could not possibly be harmed by the adult. That’s because the match itself, without any interaction, doesn’t cause any problem. So the plaintiff’s case absolutely does depend on third-party content–that’s the only possible source of the harm.
For a much better handling of this issue, see the (uncited) Doe v. Snapchat ruling involving a teacher’s sexual predation of the student. In that opinion, the court said: “The crux of Doe’s negligent design claim…is that Snapchat designed its product with features that allegedly created the opportunity for Guess-Mazock to send illicit messages to Doe. Doe’s negligent design claim similarly aims to hold Snap liable for communications exchanged between Doe and Guess-Mazock. This claim is also barred by Section 230.” From my perspective, the Snapchat plaintiff advanced an identical theory and the Snapchat court correctly rejected it. Given the tricky holding the Lemmon court tried to reach, it’s not surprising that district court judges would reach different outcomes. I hope this ultimately gets fixed.
In MH v. Omegle (also not cited by the court), the court said the plaintiffs’ claims “are rooted in the creation and maintenance of the platform.…The CDA bars such claims as they seek to redirect liability onto Omegle for the ultimate actions of their users.” The court wasn’t dealing with the negligent design claims, which is why this opinion might not have cited the case, but it stands for the broad proposition that Omegle qualifies for Section 230.
In theory, the court could correct its Section 230 error by saying that the plaintiffs have waived any claim for harm based on the conversation, and since there was no harm from the match without the conversation, the plaintiff should lose on the prima facie elements. If the court reaches any other conclusion, this seems like an obvious misapplication of the Lemmon v. Snap case that the 9th Circuit should reverse.
The court says 2421A doesn’t apply retroactively because of the way the SESTA Manager’s Amendment and the House substitute FOSTA were combined. The purported retroactivity clause only reached the SESTA piece, not the House FOSTA piece. This is another reminder of the mess that Congress made with the inelegant smashing together of the two bills.
Also because of the combination, FOSTA enabled a Section 230 exclusion for civil claims for state commercial sex promotions but not for state sex trafficking claims.
On the 1591/1595 question, this court sides with the plain language reading of the statute that the federal sex trafficking civil claim must comply with 1591’s higher scienter requirement (cite to JB v. G6). This issue is on appeal to the 9th Circuit, and the resolution of this issue has significant implications for the future of FOSTA civil claims.
Case citation: A.M. v. Omegle.com, LLC, 2022 WL 2713721 (D. Ore. July 13, 2022). I filed a rebuttal report in the MH case, but the court granted the motion to dismiss without reaching the reports.
More SESTA/FOSTA-Related Posts
* Section 230 Helps Craigslist Defeat Sex Trafficking Case–LH v. Marriott
* Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–GG v. Salesforce
* Constitutional Challenge to FOSTA Fails–Woodhull v. US
* Catching Up on a FOSTA Case–ML v. Craigslist
* Facebook Loses Jurisdictional Ruling in Texas Sex Trafficking Lawsuit–Facebook v. Doe
* Justice Thomas Really, REALLY Wants Section 230 Repealed (Even If He Has to Do It Himself)
* Section 230 Immunizes TikTok for User-Posted Videos–Day v. TikTok
* So Many Unanswered Empirical Questions About FOSTA
* Another Problematic FOSTA Ruling–Doe v. Pornhub
* Catching Up on Recent FOSTA Developments (None of Them Good)
* 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