CDT & ACLU File Amicus Briefs in Cases That Will Interpret FOSTA’s Civil Liability Standard
CDT & the ACLU filed amicus briefs on behalf of a coalition of civil rights, human rights, and sex workers rights organizations in Doe v. Twitter and M.H. v. Omegle.com, two cases that will set important new precedent interpreting the Allowing States and Victims to Fight Online Sex Trafficking Act (FOSTA).
Signed into law in 2018, FOSTA made significant changes to federal criminal law and amended Section 230, the law that shields online intermediaries from liability for user-generated content. One of FOSTA’s amendments to Section 230 created a narrow carve-out from immunity for civil claims against online intermediaries that knowingly facilitate sex trafficking. However, the plaintiffs in Doe v. Twitter and M.H. v. Omegle.com have argued that this provision allows them to hold intermediaries liable under a lower standard, if an intermediary “should have known” about alleged sex trafficking on its service.
In Doe v. Twitter, a federal court in California agreed with the plaintiffs and held that Twitter could be held liable for sex trafficking that the plaintiffs alleged occurred on its platform, because it should have known about the alleged sex trafficking. In M.H. v. Omegle.com, a federal court in Florida ruled in favor of Omegle and held that the plaintiffs cannot prevail on their federal sex trafficking claim unless they can prove that Omegle knew of the alleged sex trafficking content on its service. Both cases are now on appeal to the 9th Circuit and 11th Circuit, respectively.
CDT and the ACLU filed amicus briefs in both cases, urging the 9th and 11th Circuits to hold that FOSTA requires that intermediaries have actual knowledge of sex trafficking to be held liable for civil claims for facilitating sex trafficking. In both cases, the amicus briefs argue that holding intermediaries liable under a lower standard than “knowing” would raise serious First Amendment questions. The Supreme Court has long recognized the chilling effect of imposing liability on speech distributors — like booksellers and newsstands — for selling obscene books or periodicals without some level of knowledge. This concern is heightened when it comes to online intermediaries, which act as distributors for billions of pieces of content every day.
The amicus briefs argue that imposing liability on online intermediaries because they “should have known” about alleged sex trafficking content would negatively impact users and the public. If courts accept this standard, some intermediaries would react by choosing either to remove protected, societally beneficial content, or even whole services, to avoid the threat of liability — thereby depleting the full scope of speech and information available to the public. Other intermediaries may react in a different, but just as detrimental way, by making it difficult for users and others to inform it about alleged sex trafficking material or other objectionable content on its service or foregoing content moderation entirely, to avoid a court finding that it “should have known” about illegal content that appears on its service.
The amicus briefs explain that FOSTA has already had severe and detrimental impacts on online speech, especially related to sex workers, sex, and sexuality. FOSTA’s expansion of federal criminal provisions has caused intermediaries to shut down entire forums and censor lawful speech about sex to avoid liability, including harm reduction tools like “bad johns” lists that sex workers rely on to stay safe. The amicus briefs argue that expanding civil liability under FOSTA to reach less-than-knowing conduct would exacerbate the problem of over-removals of speech, and that sex workers, LGBTQ people, and healthcare workers are especially likely to have their lawful speech removed by intermediaries trying to avoid liability.
As CDT and many others have repeatedly pointed out, FOSTA is a flawed law that has many negative consequences for internet users, marginalized communities and the public, and CDT has previously supported a challenge to the constitutionality of FOSTA. The decisions of the 9th Circuit and 11th Circuit in Doe v. Twitter and M.H. v. Omegle.com risk exacerbating FOSTA’s harms by further incentivizing online intermediaries to over-removal lawful speech. To avoid this outcome, both Courts should interpret FOSTA to permit civil claims against only those online intermediaries that knowingly facilitate sex trafficking.
