A brief filed before the Ninth Circuit Court of Appeals late last week argued that Twitter’s failure to remove videos of two minor plaintiffs from its platform is an actionable offense under federal sex trafficking laws. The filing comes as part of cross-appeals from a ruling issued in 2021 by a San Francisco, Calif. judge on Twitter’s motion to dismiss.
According to the decision, the plaintiffs allege that “when they were thirteen years old they were solicited and recruited for sex trafficking and manipulated into providing to a third-party sex trafficker pornographic videos of themselves through the social media platform Snapchat.” A few years later, links to the videos were posted on Twitter. Despite the plaintiffs’ urgent requests to Twitter asking that they be removed, the videos trended, accruing more than 167,000 views and 2,223 retweets.
The brief adds that the plaintiffs’ teachers and peers saw the videos, causing not only great embarrassment, but also mental health consequences. Allegedly, the videos remained on Twitter until a parent contacted the Department of Homeland Security. The agency intervened, yet it still took Twitter nine more days to remove the child sex abuse material (CSAM), the opinion said.
The plaintiffs sued under state and federal law over Twitter’s involvement in and enabling of sex trafficking and the distribution of the child pornography containing their images. Twitter countered that even after Congress’s enactment of the Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act in 2018, the conduct alleged is shielded from liability under Section 230 of the Communications Decency Act (CDA).
The district court issued a mixed ruling, denying dismissal of the plaintiffs’ “Benefiting from a Sex Trafficking Venture,” claim but dismissing the rest based on CDA 230 immunity. For the beneficiary sex-trafficking claim, the court declined to find immunity because it classified CSAM not as content over which online intermediaries make editorial decisions, but instead contraband that Twitter knowingly possessed.
Twitter sought and received permission to interlocutory appeal the denial, and did so. The plaintiffs then cross-appealed.
In last week’s brief, the plaintiffs reiterated that Twitter is not entitled to CDA immunity regarding its claim for beneficiary sex-trafficking liability. They then urged the Ninth Circuit to reverse the district court’s decision with their claims for civil remedies related to CSAM and direct sex-trafficking liability.
The plaintiffs asserted that the immunity shield should not apply because Twitter had notice and knowledge that the videos were CSAM, yet refused to act, making it culpable. Additionally, they argued that the claims should stand because they do not seek to treat Twitter as the “publisher” or “speaker” of the information as CSAM is not covered by Section 230, but is instead unlawful contraband.
Amicus curiae including the American Civil Liberties Union and other civil rights organizations as well as the Chamber of Progress and NetChoice LLC vouched for Twitter, in part arguing that it had no actual knowledge of the “sex trafficking venture.” The ACLU brief contended that holding Twitter accountable for even one this claim would “would raise serious First Amendment questions.”