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