Twitter Defeats FOSTA Case Over CSAM–Doe v. Twitter

December 15, 2023 · by Eric Goldman · in Content Regulation, Derivative Liability

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

Twitter Defeats FOSTA Case Over CSAM–Doe v. Twitter

Comments and Pings

One Pingback/Trackback