Appeals Court Dismisses Lawsuit Accusing Twitter of Sex Trafficking

Twitter prevails in sex trafficking case. The U.S. Court of Appeals for the 9th Circuit has dismissed a lawsuit that accused Twitter of participating in a sex trafficking venture. The suit—which invoked the controversial 2018 Fight Online Sex Trafficking Act (FOSTA)—represented an important test case for how expansively FOSTA would be interpreted.

The case was brought by two John Does and the group formerly known as Morality in Media, a conservative activist group that now goes by the National Center on Sexual Exploitation (NCOSE). At the crux of the case are sexually oriented videos that the Does took of themselves when they were young teens. The teens shared these videos, via Snapchat, with an adult posing as a teenager. This person did not keep them private and they wound up circulating online.

Years later, someone tweeted links to a compilation of these videos that was hosted on another website. Twitter eventually removed the tweets linking to the video (though it took a little more than a week after one Doe first reported them and a nudge from someone at the Department of Homeland Security, according to the NCOSE complaint).

I wrote about this case in detail back in 2021, noting that it relied on a novel theory of what constitutes sex trafficking and what constitutes participating in a sex trafficking venture:

Traditionally, the crime of sex trafficking must involve "commercial sex acts"—a.k.a. prostitution—and there must be minors involved or an element of force, threatened force, fraud, or coercion. In short, someone must pay someone else (or give them something of value) in a quid pro quo that involves an attempted or completed nonconsensual sex act.

In the case against Twitter, the plaintiffs suggest that soliciting a sex video from someone under age 18 amounts to sex trafficking. Unwittingly providing a platform for a third party to post or link to that video makes one part of a sex trafficking enterprise, they argue. Thus, Twitter is allegedly guilty of participating in a sex trafficking venture by temporarily and unknowingly hosting links to a pornographic video featuring two teenagers.

It's not that nothing wrong or exploitative happened here—of course it did. But the proper locus of legal liability is with the adult who allegedly extorted sexual videos from minors, with whoever posted it online, and, possibly, with the website that hosted this content, if it did so knowingly.

Instead, NCOSE targeted Twitter—part of a larger effort to hold social media platforms and other online entities that trade in user-generated content liable for "sex trafficking" in an increasingly broad array of circumstances.

FOSTA is a big part of this effort because it says Section 230—a law protecting web platforms and users from some liability for third-party speech—doesn't apply when sex trafficking is involved. "Due largely to FOSTA, civil sex trafficking claims can now be brought against online platforms that had no direct involvement with the sex trafficking venture or the victims," as First Amendment attorney Lawrence Walters, head of the Walters Law Group, told me back in 2021.

Twitter argued that FOSTA didn't apply in this case because there was no underlying sex trafficking involved. Under federal law, the offense of sex trafficking generally requires a guilty party to take action against a person (or benefit from participation in a venture that does so) while knowing or acting "in reckless disregard of the fact" that force, threats of force, fraud, or coercion "will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act."

Judge Joseph C. Spero with the U.S. District Court for the Northern District of California largely sided with Twitter, "rejecting all but [the Does'] claims of unlawful profiting from a sex trafficking venture," according to Courthouse News Service.

The Does then appealed to the 9th Circuit, arguing that the District Court erred in dismissing their claims that Twitter directly violated the Trafficking Victims Protection Reauthorization Act (TVPRA) and that Twitter is liable under the TVPRA because it benefited from third-party sex trafficking activities that it facilitated.

In an unsigned decision on May 3, the 9th Circuit not only affirmed the lower court's dismissal of those two counts but also reversed its denial of a dismissal of another count alleged by the Does.

Two of the questions Twitter raised in its appeal involved whether FOSTA's immunity carve-out to Section 230 requires an underlying violation of federal sex trafficking law (Section 1591) and how to interpret that law's section on "participation in a venture," which requires a party have a "continuous business relationship" with sex traffickers in order to be liable.

The 9th Circuit addressed both these questions in another case, Jane Does 1–6 v. Reddit, Inc., in which it found Reddit not guilty of sex trafficking in similar circumstances to this case.

In the Reddit case, the 9th Circuit held that "for a plaintiff to invoke FOSTA's immunity exception, she must plausibly allege that the website's own conduct violated section 1591." It also held that "in a sex trafficking beneficiary suit against a defendant-website, the most important component is the defendant website's own conduct—its 'participation in the venture'" and "a complaint against a website that merely alleges trafficking by the website's users—without the participation of the website—would not survive."

"Accordingly, establishing criminal liability requires that a defendant knowingly benefit from knowingly participating in child sex trafficking," the 9th Circuit held in the Reddit case.

"Reddit therefore requires a more active degree of 'participation in the venture' than a 'continuous business relationship' between a platform and its users," noted the 9th Circuit in its Twitter decision.

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FREE MINDS

Connecticut may posthumously exonerate people executed as witches in the 1600s. "The early colonies of Connecticut and New Haven indicted at least thirty-four women and men for the alleged crime of witchcraft and convicted twelve of them, executing eleven, and it is now accepted by the historical profession and society as a whole that all the accused were innocent of such charges," notes a resolution before the state's legislature. The measure would resolve "that all of the formally convicted and executed are exonerated of all alleged crimes relating to the charges of witchcraft," proclaiming "the innocence of the following convicted and executed people: Alice Young in 1647, Mary Johnson in 1648, Joan Carrington in 1651, John Carrington in 1651, Goodwife Bassett in 1651, Goodwife Knapp in 1653, Lydia Gilbert in 1654, Mary Sanford in 1662, Nathaniel Greensmith in 1663, Rebecca Greensmith in 1663, and Mary Barnes in 1663; and one Elizabeth Seager convicted and reprieved in 1665."

"The bill is part of a microtrend of late: Nearly 400 years after their infamous witch trials, New England states have been introducing and passing legislation to exonerate those who were convicted," pointed out Kaleigh Rogers at FiveThirtyEight. This includes a measure in Massachusetts last year and one pending in New Hampshire.

"Connecticut's bill was largely the product of a campaign by a group of historians and descendants of convicted witches seeking closure," reported Rogers. But there are other motivations as well:

Connecticut state Sen. Saud Anwar, who co-sponsored the bill, said the main motivation was to acknowledge the injustice of the state's puritanical (literally) witch hunts. But he said that this kind of stance also communicates that the state supports women at a time when women's rights face renewed threats. "It's no secret that what happened 300-plus years ago was because the women were women and they were being targeted," Anwar said. "When men are in control … they use their means to try and take away the rights of women. It was prevalent then. It remains prevalent now."

Anwar pointed out that many of the accused were targeted for being "independent women." State Rep. Jane Garibay said in a hearing that some of the accused were women who simply dressed differently or were "too assertive" and that the bill was "not about witchcraft. This is about women's rights and justice." In this sense, the bill is not only a symbolic gesture to right the wrongs of the past, but also a way for the (largely) Democratic lawmakers supporting it to signal their feminist bona fides without having to pass any actual new laws.

That last part has some people critical of such efforts. They argue—and I'm inclined to agree—that lawmakers shouldn't be wasting time on symbolic gestures like these.

"If it's just some flowery, nice thing to do that has no substantive meaning…we shouldn't be doing bills like that," Connecticut state Rep. Doug Dubitsky (R–Chaplin) told FiveThirtyEight. "We should do bills that have substance. We have too much work to do."

It's also a bit perverse to focus on injustices driven by centuries-old cultural hysteria while ignoring people still very much alive and suffering from modern moral panics, like the wars on drugs and sex work.

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FREE MARKETS

How federal regulators are trying to quietly kill cryptocurrency. In New York magazine, Jen Wieczner takes a detailed look at how regulators are undermining crypto companies and innovation. Rather than outright bans, they're more quietly thwarting cryptocurrency companies with impossible requirements and an array of byzantine rules:

The crypto company was essentially reverse-engineered for Washington, D.C.'s stamp of approval. Protego Trust, founded by a lawyer turned venture capitalist, was betting big that it could be the squeaky-clean, bona fide bank that crypto needed to win Wall Street's business. It had spent $80 million pursuing a coveted approval for a national trust charter, winning conditional approval in 2021. It then raised more than $100 million — at a reported $2 billion valuation — from big crypto companies, including Coinbase (as well as now-bankrupt FTX), among other investors. Its board included a former Fortune 500 CEO and even the onetime head of the Office of the Comptroller of the Currency, the country's chief bank regulator.

"We courted regulation. We did everything that was required in order to build a pristine financial institution to serve the most discerning institutional clients," says Protego founder Greg Gilman. Protego planned to work exclusively with professional investing firms (no individual retail traders), providing safekeeping (what's known as "custody" in the crypto industry) along with trading and lending.

But when Protego told the OCC in February that it had completed all of the agency's requirements for full approval, its application was denied on a technicality — one that the OCC had never mentioned before, according to a person familiar with the situation.

"In the end, it feels like there was an unannounced and unexplained policy change that derailed our efforts," says Gilman, who declined to comment on the specifics. Protego subsequently laid off the majority of its staff, and the company's future is uncertain.

In the crypto industry, the experience of Protego and that of many others like it has led to an almost universal conviction that financial regulators are purposefully trying to put them out of business — not by barring them explicitly but rather through the recent appearance of a web of policies, both written and unwritten, that together make it unfeasible or impossible for crypto firms to operate in the U.S. "It feels coordinated. It feels like a carpet-bombing," says Kristin Smith, CEO of the Blockchain Association. "And there's a certain realization that we have to fight back."

More here.

Katie Haun, a former federal prosecutor who now runs a Silicon Valley venture capital firm, told New York that the situation was akin to Operation Choke Point, an Obama-era program used to cripple legal businesses by cutting off their access to banks and financial services. Some crypto industry folks are calling it "Operation Choke Point 2.0," she told the magazine, noting that this go-around the program is both more public and "broader in scope."

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