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.

Section 230

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.

FOSTA

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.