Twitter Defeats FOSTA Case Over CSAM–Doe v. Twitter

This is a FOSTA case. All FOSTA cases are very complicated. (Indeed, almost all of the opinion is spent explaining the background). If you’re new to FOSTA cases and you are baffled by the layers of inferences and arguments here, you are definitely not alone.

The plaintiffs allege that Twitter disseminated CSAM that it knew about, and the dissemination violated FOSTA. However, FOSTA was not designed as an anti-CSAM law, so the plaintiffs’ claims don’t really fit the legal doctrine.

In 2021, the court dismissed the non-FOSTA claims but did not dismiss the FOSTA claim. Both parties appealed to the Ninth Circuit. In a memo opinion, the Ninth Circuit affirmed the non-FOSTA claim dismissals and remanded the FOSTA claim for reconsideration in light of the Ninth Circuit’s Doe v. Reddit opinion, which held that FOSTA didn’t apply to CSAM. In covering the 9th Circuit’s Twitter ruling, I said “Twitter should now win the case.” That’s exactly what happens on remand.

(Note: at the time of the 9th Circuit’s ruling in this case, the Doe v. Reddit cert petition was pending before the Supreme Court. A few weeks later, the Supreme Court denied certiorari in the Reddit case).

The Reddit decision resolved FOSTA’s 1591/1595 split by saying that plaintiffs must meet the higher scienter requirements of 1591 to proceed with their FOSTA claim without triggering the Section 230 preemption. The Twitter plaintiffs’ allegations don’t suffice. The court says:

Plaintiffs argue that they have met the Reddit standard because they have alleged facts showing Twitter had “actual knowledge” that the photos were the product of child sex trafficking and affirmatively refused to remove them. The material facts alleged by Plaintiffs, however, are essentially the same as the ones alleged in Reddit as to the website’s awareness of and participation in alleged sex trafficking and that were found to be insufficient by the Ninth Circuit.

In Reddit, as in this case, the plaintiffs alleged that the website had both general knowledge that child sexual abuse material (“CSAM”) proliferated on its platform and specific knowledge that CSAM depicting the plaintiffs was being posted and shared on it…

under Reddit, the conduct alleged in this case amounts to “turning a blind eye” rather than “active participation” in sex trafficking and therefore does not amount to a criminal violation of section 1591(a)(2) as is required to fall outside of the immunity established under CDA § 230

(The plaintiffs pointed to the Doe v. Mindgeek decision, but that was issued pre-Reddit and therefore may no longer be valid).

The allegations about Twitter’s (and Reddit’s) scienter towards CSAM may sound horrifying, but the court is only saying that FOSTA attempted to redress sex trafficking, not CSAM, and the plaintiffs are trying to deploy FOSTA to do something it was never designed to do. Despite that, I’m sure the plaintiffs will appeal this ruling back to the Ninth Circuit.

Case Citation: Doe v. Twitter, Inc., 2023 WL 8568911 (N.D. Cal. Dec. 11, 2023)

BONUS: In the Doe v. Mindgeek litigation, the court certified a class of CSAM victims suing Mindgeek for “knowingly” disseminating videos of them. I’m not sure where the appeals stand in the case, but it seems like the Reddit case still casts a long shadow over this one. The latest opinion doesn’t reference Reddit at all and uses language (like willful blindness and generalized knowledge) that should have been rejected by the Reddit ruling. Doe v. Mindgeek USA Inc., 2023 WL 8126845 (C.D. Cal. Nov. 17, 2023).

UPDATE: See also Doe v. MG Freesites, Ltd., 2023 WL 8792153 (N.D. Ala. Dec. 19, 2023), also granting class certification in a FOSTA/CSAM case.

More SESTA/FOSTA-Related Posts

* DC Circuit Upholds FOSTA’s Constitutionality (By Narrowing It)–Woodhull v. U.S.
Section 230 Immunizes Snap, Even if It’s “Inherently Dangerous”–L.W. v. Snap
The Ninth Circuit’s FOSTA Jurisprudence Is Getting Clearer (and More Defense-Favorable)
Defendants Get Important FOSTA Win in 9th Circuit–Doe v. Reddit
More Evidence that FOSTA Benefited No One
Omegle Denied Section 230 Dismissal–AM v. Omegle
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