Another Problematic FOSTA Ruling-Doe v. Pornhub – Technology & Marketing Law Blog

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Another Problematic FOSTA Ruling-Doe v. Pornhub - Technology & Marketing Law Blog

A few observations from reading numerous FOSTA cases:

  • sex trafficking victim cases are horrifying.
  • courts cannot figure out how to interpret FOSTA.
  • due to FOSTA’s ambiguities, judges are turning to judicial activism to favor victims regardless of the law.
  • the doctrinal errors judges are making in FOSTA cases may migrate into standard Section 230 jurisprudence, which would cause significant problems for UGC that Congress thought FOSTA wouldn’t reach.

I previously blogged a different Pornhub ruling in my recent lengthy FOSTA roundup. This ruling is even more problematic.

1591/1595 and Section 230.

The court surveys the 1591/1595 scienter ambiguity and says:

The few district courts that have considered the issue in the four years since FOSTA’s enactment have reached different conclusions. Decisions from federal district courts in Florida and California have dismissed TVPRA claims against ICSs on the ground that FOSTA withdraws immunity for websites only if the sex trafficking victim has sufficiently pled that the website’s own conduct amounts to a violation of section 1591, in effect requiring plaintiffs to allege that the defendants in those cases had actual knowledge of their sex trafficking and knowingly participated in it. [Cites to Kik, JB, and Reddit.] On the other hand, other decisions from federal district courts in California have found that plaintiffs must do no more than plead the elements of a section 1595 claim, including in a case where a Jane Doe plaintiff sued the same defendants that Plaintiffs sue here—those entities that own and operate Pornhub—on very similar grounds. [Cites to Mindgeek and Twitter.]

The JB ruling is the most thoughtful of these rulings. The JB court traced the legislative history to explain why the plaintiffs must plead the elements of 1591, including the actual knowledge requirement. The statute’s plain text also makes this clear, but the plaintiffs’ lawyers are trying to craft a different result in the courts than what Congress provided.

After recapping the 1591/1595 scienter issue, the court punts on what scienter is required by 1591/1595 to take advantage of FOSTA’s Section 230 exception. Instead, the court says Section 230 doesn’t apply to any of the claims for other reasons.

Section 230 and Material Contribution.

The court says that Section 230 doesn’t apply to the defendants because, per Roommates.com, they make material contributions to the illegality of third-party content, favorably citing the following allegations:

Plaintiffs have plausibly alleged that Defendants indeed materially contribute to the provision of child pornography on their platforms. Plaintiffs allege that Defendants do more than just provide a place to host third-party CSAM or employ neutral tools that treat videos depicting CSAM the same as any other videos on Pornhub. Rather, Plaintiffs allege that Defendants encourage and materially contribute to the development, optimization, and advertising of CSAM on Pornhub. Specifically, the complaint alleges that Defendants themselves generate tags, categories, and keywords that users wishing to post CSAM videos can use, and in fact are encouraged to use, to maximize views, such “teen,” “abused teen,” and “middle school girls”; Defendants admit to creating at least some of the pornography content on their websites and create thumbnails of CSAM videos, including of the videos of Plaintiffs, which amounts to new creation and possession of child pornography; Defendants create timelines for viewers to jump around to certain labeled scenes in videos depicting CSAM; they employ coded language for CSAM content to ensure that such content is visible to users who search for it; and their moderators are discouraged from flagging CSAM. Plaintiffs have also alleged that Defendants develop and materially contribute to illegal content by editing advertisements to market to pedophiles by including terms associated with CSAM; controlling the content in each video through extensive instructions to uploaders including the type of content viewers wish to see and the sex acts to take place; and exercising even greater control over the content of Modelhub members and Content Partners, some of which constitutes CSAM. In this way, Defendants do even more than merely encourage the posting of CSAM by providing a means for users to publish what they created but rather materially contribute to it by designing their platforms for an illicit purpose.

This is quite a paragraph, much of it legally wrong or inconsistent with past rulings. I’m not going to point out all of the paragraph’s flaws, but I’ll highlight some:

  • Creating tags, categories, and keywords has not previously constituted material contribution to the illegality. The Dyroff case is one of many cases to the contrary. While the “teen” tag may sound problematic and could be a coded reference, 18 and 19 year olds in fact can produce legal pornography. The other referenced tags remind me of what the Ninth Circuit wrote in Perfect 10 v. ccBill (in the copyright context): “When a website traffics in pictures that are titillating by nature, describing photographs as ‘illegal’ or ‘stolen’ may be an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen.”
  • Creating thumbnails does not materially contribute to the illegality of the content. It’s still third-party content, just extracted. While I hate the “neutral tools” phrasing, creating thumbnails seems like something that should qualify. If creating thumbnails of third-party content eliminates Section 230 protection, that would hit UGC services across-the-board.
  • Providing content specifications to content uploaders should not constitute “material contribution” to the illegality (unless the instructions demand illegal content). Every service provides specifications for the UGC that users can/should upload. Treating those instructions as 230-disqualifying would functionally repeal 230.
  • Treating “designing their platforms for an illicit purpose” as a disqualifier for Section 230 is both possibly novel and seems to ignore the fact that the defendants’ websites were not designed to solicit CSAM (and, in fact, gathered apparently tens of millions of non-CSAM content). The court later says “the allegations are that Defendants’ tools themselves function in a way to direct users to CSAM in particular, as opposed to treating CSAM the same way that lawful videos on Defendants’ websites are treated,” but the court contradictorily cites multiple items of evidence that all videos were treated similarly.
  • More generally, the court treats the fact that the defense may be the content provider for some content as a reason to make them responsible for all third-party content. Section 230 has never worked this way; instead, Section 230 applies on an item-by-item basis. The court breezes past this careful item-specific review because the complaint is styled as a class action, but the court should have narrowed the case down by excluding the items that categorically qualify for Section 230.

To support its aberrational conclusion, the court says:

Pornhub simply cannot be likened to other kinds of ICSs that were aptly described in a similar case as “the river[s] through which internet sexual trafficking flows.”…Pornhub is alleged to be an entirely different animal.

Unlike most video services, Pornhub emphasized third-party pornography, not videos of all types. The court seems to treat that as categorially disqualifying of Section 230.

FOSTA Claim.

The court then says the allegations satisfy the civil FOSTA claim. Regarding the “participation in a venture” requirement:

Plaintiffs have alleged facts showing that Defendants participated in a venture by possessing, reviewing, disseminating, and refusing to remove child pornographic content, profiting from that content, and sharing those profits with Plaintiffs’ sex traffickers.  Plaintiffs have alleged facts from which it can be reasonably inferred that their sex traffickers had not only tacit agreements with Defendants—which is all that is required under section 1595—but in fact had explicit agreements with Defendants, namely their Modelhub and Content Partner business relationship agreements—where they shared in the benefit from Plaintiffs’ exploitation.

Regarding allegations of scienter, the court cites the following:

Plaintiffs allege the following facts that make it plausible that Defendants should have known that the videos of Plaintiffs on Pornhub constituted child pornography. Defendants own and control multiple pornography websites without verifying age and consent of persons appearing in the content; review all content on their websites; harvest and analyze user data, including searches and video views; tag, categorize, and otherwise optimize content for user preferences, including Jane Doe #1’s content by tagging it “Lil”; give bonuses to moderators based on the number of videos approved (instead of blocked); discourage moderators from removing profitable users’ illegal videos; direct less scrutiny to videos that look professionally made or are from Defendants’ business partners, including Modelhub members; maintain a list of banned terms that would indicate illegal activity, including child pornography and sex trafficking, but loosely conceal those terms with other terms; and profit from encouraging VPN use to disguise who is accessing the site and from permitting banned users to re-enter the site and reuse the banned images or videos as well as the associated comments, tags, and keywords. Defendants are alleged to have general knowledge of widespread CSAM and other sex trafficking content on their sites, and specific knowledge of sex trafficking content from their Content Partners GirlsDoPorn and Czech Casting, who faced criminal charges. Defendants are alleged to have retagged and retitled known CSAM videos, leaving links to known CSAM live, with associated metadata, keywords, comments, and tags so that it will continue to feed SEO and direct users to this material; and reporting CSAM content to NCMEC but waiting until 2020 to do so and making relatively few reports. Plaintiffs have more than sufficiently alleged that Defendants had constructive knowledge of Plaintiffs’ sex trafficking

Section 2252 and 2252A

The court then turns to the civil claim for federal criminal CSAM violations:

Plaintiffs have easily pled the knowledge requirement for violations of §§ 2252 and 2252A. This is not a case, such as the cases cited by Defendants, where a defendant has no way of knowing whether he had received the CSAM images he sought because he had never accessed nor viewed them. To the contrary, Plaintiffs have alleged that Defendants actively control which videos are posted to Pornhub. They have alleged that Defendants claim to review every video, flagging videos only if the performer appears to be under the age of 12. Defendants sometimes retitle videos indicating CSAM but leave the videos available for distribution. Defendants allow slightly modified versions of their banned terms to remain on the site, such as replacing a letter of a banned term with an asterisk, replacing a banned term with the same term in a different language, or replacing a banned term with another term common to predators and exploiters looking for such videos and images. Allowing banned terms to remain searchable in loosely concealed forms especially demonstrates Defendants’ knowledge of their receipt of CSAM on their sites and acts as instruction to users to avoid blatant terms that would tip off law enforcement. Further, Defendants create and suggest tags indicating CSAM for uploaders to use, such as the “Lil” tag that was used to categorize Plaintiff Jane Doe #1’s videos. These practices require accessing and viewing videos and thus provide knowledge of the video content and knowing receipt of the videos. And this is all done despite numerous notifications to Defendants by law enforcement, victims advocacy groups, press reports, and government agencies as to the prevalence of child pornography on their websites. Further, not only are Defendants aware of the CSAM content, but they boast to potential advertisers of their intimate knowledge of users’ interactions with that illegal content.

The court botches the intersection between the civil claim (based on a federal crime) and Section 230. It already concluded that the defense didn’t qualify for Section 230 for the FOSTA claim, so I’m not sure why the court addressed Section 230 again. (Maybe because the claim elements are different?). Prior cases have uniformly held that Section 230 preempts civil claims based on federal crimes. I think the First Circuit’s Doe v. Backpage ruling is the leading decision on this point, but there are many other rulings on this point (some that came quickly to mind: Doe v. Bates; Obado v. MagedsonMA v. Village VoiceDart v. CraigslistGoDaddy v. Toups, Hinton v. Amazon, Cohen v. Facebook, Icon Health v. ConsumerAffairs, Jones v. Twitter, Doe v. Twitter). This judge diverges from all of them:

Section 230 does not apply to their claim that Defendants knowingly received, possessed, and distributed child pornography, for several reasons. First, child pornography is not lawful “information provided by another information content provider” as contemplated by Section 230. Rather, it is illegal contraband, stemming from the sexual abuse of a child, beyond the covering of First Amendment protection, and wholly outside any other protection or immunity under the law, including Section 230. In other words, Section 230’s prohibition on ICSs being treated as “speaker[s]” of “information” is not implicated here because child pornography is not protected speech and conveys no legally cognizable information

This doesn’t make any sense. Section 230 is only needed when there’s illegal third-party content (you don’t need immunity for “legal” content). So calling CSAM “illegal” and unconstitutional “contraband” should reinforce the point of Section 230.

This case wades squarely into the EARN IT Act debates. Congress is proposing to explicitly exclude CSAM from Section 230. To this point, the court says:

Plaintiffs’ section 2252 and 2252A claims allege that Defendants are not only distributors of but also receivers and possessors of child pornography. Receipt and possession of child pornography, alone, are criminal acts, and are not shielded by Section 230 immunity.

The court is correct that Section 230 doesn’t protect against “criminal acts” that trigger federal criminal prosecutions, but this case is not one of those. Otherwise, if the court is correct, then CSAM is already categorically outside Section 230 and we don’t need EARN IT because the law already accomplishes EARN IT’s goals. However, this can’t be true. “Receiving” and “possessing” third-party content is still based on third-party content, so it would eliminate Section 230 protection if “possessing” and “receiving” illegal third-party content, incident to the function of publishing and speaking, is outside Section 230’s scope. If so, any legislature could say that it’s illegal to “receive” defamatory third-party content and eliminate Section 230 for those claims. (Such a law would violate the First Amendment, as would strict liability for possession/receipt of CSAM, but Section 230 resolves these cases faster and with more certainty).

The court continues:

Second, Congress enacted Section 230 of the CDA to incentivize ICSs to protect children, not immunize them for intentionally or recklessly harming them…Section 230(e)(1) specifically states that Section 230 has “no effect on criminal law,” including chapter 110 of Title 18, which contains sections 2252 and 2252A. It is untenable then, to assert that Section 230 immunizes platforms from knowingly possessing and distributing CSAM

The court does not understand the moderator’s dilemma. Section 230 absolutely does provide incentives to protect kids. A main point of opposition to EARN IT is that it is not likely to help child victims and is quite likely to hurt them (just as FOSTA has hurt far more victims than it’s helped).

The latter point has been rejected by other courts. The court engages two of the precedents, Doe v. Bates and Diez v Google, but calls them “unpersuasive,” and in a footnote, it also disagrees with Doe v. Twitter rejecting the exact same argument it adopts. The court rejects Bates because “it treats child pornography in the same way courts have treated speech, such as defamatory statements, instead of treating it as illegal contraband.” Most folks would recognize that this is a distinction without a difference.

Implications

It’s hard to read this opinion (and the earlier Mindgeek ruling) and not be troubled by the allegations of the defendants’ choices. Without hearing the defendants’ side of the story yet, the allegations sound terrible and possibly criminal. The court observes:

if Plaintiffs’ allegations are confirmed, Defendants, through their ownership and operation of Pornhub and other sites, are no different than the thousands of individuals who are convicted of non-production child pornography offenses in the United States each year. Frankly, if true, the Court would not be surprised to see at least some of the defendants prosecuted for such offenses….

if Plaintiffs’ allegations are true, Defendants, through Pornhub and other sites, host and harbor child pornography—i.e., knowingly receive and possess it—which are illegal acts under the United States Code and which are prosecuted in proceedings against individuals every day. How, then could a corporate defendant escape punishment for the same illegal conduct?

I imagine the DOJ is watching these cases. If the DOJ chooses to prosecute, Section 230 will not help the defendants.

Case citation: Doe v. MG Freesites, Ltd, 2022 WL 407147 (N.D. Ala. Feb. 9, 2022)

More SESTA/FOSTA-Related Posts

* Catching Up on Recent FOSTA Developments (None of Them Good)
Section 230 Preempts Claims Against Omegle–M.H. v. Omegle
To No One’s Surprise, FOSTA Is Confounding Judges–J.B. v. G6
FOSTA Claim Can Proceed Against Twitter–Doe v. Twitter
FOSTA Survives Constitutional Challenge–US v. Martono
2H 2020 Quick Links, Part 4 (FOSTA)
Justice Thomas’ Anti-Section 230 Statement Doesn’t Support Reconsideration–JB v. Craigslist
Sex Trafficking Lawsuit Against Craigslist Moves Forward–ML v. Craigslist
Section 230 Preempts Another FOSTA Claim–Doe v. Kik
Section 230 Protects Craigslist from Sex Trafficking Claims, Despite FOSTA–JB v. Craigslist
Facebook Still Can’t Dismiss Sex Trafficking Victims’ Lawsuit in Texas State Court
Craigslist Denied Section 230 Immunity for Classified Ads from 2008–ML v. Craigslist
2H 2019 and Q1 2020 Quick Links, Part 3 (FOSTA/Backpage)
New Paper Explains How FOSTA Devastated Male Sex Workers
FOSTA Constitutional Challenge Revived–Woodhull Freedom Foundation v. US
New Civil FOSTA Lawsuits Push Expansive Legal Theories Against Unexpected Defendants (Guest Blog Post)
Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–Doe v. Salesforce
Latest Linkwrap on FOSTA’s Aftermath
Section 230 Doesn’t End Lawsuit Claiming Facebook Facilitated Sex Trafficking–Doe v. Facebook
New Essay: The Complicated Story of FOSTA and Section 230
Who Benefited from FOSTA? (Spoiler: Probably No One)
FOSTA’s Political Curse
FOSTA Doesn’t Help Pro Se Litigant’s Defamation Claim Against Facebook
Constitutional Challenge to FOSTA Dismissed for Lack of Standing (Guest Blog Post)
An Update on the Constitutional Court Challenge to FOSTA–Woodhull Freedom v. US (Guest Blog Post)
Indianapolis Police Have Been “Blinded Lately Because They Shut Backpage Down”
Constitutional Challenge Against FOSTA Filed–Woodhull v. US (Guest Blog Post)
Catching Up on FOSTA Since Its Enactment (A Linkwrap)
More Aftermath from the ‘Worst of Both Worlds FOSTA’
‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration
Backpage Loses Another Section 230 Motion (Again Without SESTA/FOSTA)–Florida Abolitionists v. Backpage
District Court Ruling Highlights Congress’ Hastiness To Pass ‘Worst of Both Worlds FOSTA’– Doe 1 v. Backpage
More on the Unconstitutional Retroactivity of ‘Worst of Both Worlds FOSTA’ (Guest Blog Post)
Senate Passes ‘Worst of Both Worlds FOSTA’ (Linkwrap)
Why FOSTA’s Restriction on Prostitution Promotion Violates the First Amendment (Guest Blog Post)
SESTA’s Sponsors Still Don’t Understand Section 230 (As They Are About to Eviscerate It)
Can the ‘Worst of Both Worlds FOSTA’ Be Salvaged? Perhaps…and You Can Help (URGENT CALL TO ACTION)
Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)
What’s New With SESTA/FOSTA (January 17, 2018 edition)
New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
How SESTA Undermines Section 230’s Good Samaritan Provisions
Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)
Another SESTA Linkwrap (Week of October 30)
Recent SESTA Developments (A Linkwrap)
Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
My Senate Testimony on SESTA + SESTA Hearing Linkwrap
Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity