On March 21, 2018, the anti-sex trafficking movement celebrated a monumental victory: the passage of the Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act (FOSTA-SESTA). FOSTA-SESTA was the result of a decade of advocacy, begging Congress to take action against the proliferation of online sex trafficking on sites such as Backpage.com.
Survivors filed lawsuits. Chilling documentaries were released. Citizens raised their voices and petitioned for change.
It all culminated in the passage of this law. And we thought the world would never be the same again…
But fast forward to the present. Seven years later, we’re faced with a difficult truth: FOSTA-SESTA has not accomplished what it set out to do.
Because concessions were made to Big Tech during the drafting of FOSTA-SESTA, Tech was able to lobby for language that gutted the bill. In the end, it was rendered almost useless for survivors. And this is bearing out in the court cases.
The Problem: Courts Have NOT Applied FOSTA-SESTA as Congress Intended
FOSTA-SESTA was intended to empower survivors of sex trafficking to file civil lawsuits against online platforms that facilitated their abuse, as well as allow states to prosecute these platforms. But since it was passed, courts have broadly neglected to apply FOSTA-SESTA as Congress intended.
FOSTA-SESTA is an amendment to the infamous Section 230 of the Communications Decency Act. Due to misinterpretations of Section 230, courts were ruling that online platforms were immune from liability when they actively facilitated sex trafficking. FOSTA-SESTA sought to remedy this by clarifying that Section 230 “was not intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.”
This was a significant step forward, and a necessary clarification of the law. Yet despite this amendment, Section 230 continues to serve as a death sentence to the vast majority of cases brought against platforms that facilitate sexual exploitation. To this day, we are aware of only one company which was successfully sued under FOSTA-SESTA (Salesforce, for aiding the infamous sex trafficking practices of Backpage.com). Every other case has failed, with courts ruling that the platforms are still immune under Section 230.
Why Is it So Hard to Sue Under FOSTA-SESTA?
So, what is going on? Why is it so hard for survivors to bring cases under FOSTA-SESTA?
The answer is simple: Big Tech lobbyists got their way. As written, FOSTA-SESTA says:
“Nothing in this section (Section 230) shall be construed to impair or limit any claim in a civil action brought under [the civil remedy provision for the Trafficking Victims Protection Act (TVPRA)] if the conduct underlying the claim constitutes a violation of [the criminal provision of the TVPRA].”
The problem lies in the “conduct underlying the claim,” language. When FOSTA-SESTA was first introduced, Big Tech and its lobbyists argued that this language needed to be added to make sure that “sex trafficking activity” for the purposes of liability would follow the federal definition and they would not be forced to contend with a patchwork of state standards. This sounds reasonable, right? But NCOSE and other advocates warned that this language was unnecessary and could cause interpretation issues. Our concerns were disregarded.
Then, unsurprisingly, the tech industry argued in every court case brought under FOSTA-SESTA that this language was actually designed to require a heightened pleading requirement, so that survivors must show criminal liability by the website for FOSTA-SESTA to apply. They denied that the language was only meant to establish a standard definition of sex trafficking, as they initially argued. This type of bait and switch is Big Tech’s standard playbook.
The result was courts interpreted this language as establishing a heightened pleading requirement for sex trafficking cases involving websites. This has placed an unrealistic burden on survivors to essentially provide a criminal indictment in order to sue websites for facilitating sex trafficking—without the benefit of subpoena power or arrest warrants.
This means the tech industry gets special treatment in sex trafficking cases not afforded to any other industry. If, for example, a hotel facilitates and profits from sex trafficking, the standard for demonstrating that you can at least bring a case against them is that they “should have known” they were profiting from and facilitating sex trafficking. But for a tech platform, under current interpretations of FOSTA-SESTA, a survivor must show (to even bring a case) that the website or platform had actual knowledge of their specific sex trafficking and actual knowledge that they were profiting from it.
Why should the tech industry, the most powerful industry in the world and the #1 facilitator of sex trafficking, be given this special treatment? Why not hold them to the same standard of liability that every other industry is?
Further, the problems go even beyond the language of FOSTA-SESTA itself. With nearly thirty years of Section 230 immunity under our belt, courts have grown so habituated to protecting Big Tech that almost nothing is enough to break that pattern. Certain cases have brought facts that we believe did meet the criminal liability and actual knowledge standards—yet judges have still ruled that even this is not enough. This is the uphill battle the NCOSE Law Center faces in some of our cases.
Case Study: A Child Sex Trafficking Survivor Denied Justice Against Twitter
One tragic case of a survivor’s FOSTA-SESTA claims being blocked is in John Doe v. Twitter.
John Doe was thirteen years old when he was deceived and manipulated by a sex trafficker into creating child sexual abuse material of himself (CSAM, or “child pornography” under the law”). The CSAM was later posted to Twitter and went viral, being seen by people in John’s school, and driving the teenage boy towards suicidal ideation. John Doe and his mother reported the video to Twitter multiple times, providing proof of his age and identity (i.e. proof that the material was illegal CSAM). Yet in the end, all they received was this response:
“We’ve reviewed the content, and didn’t find a violation of our policies, so no action will be taken at this time.”
The NCOSE Law Center and the Haba Law Firm are representing John Doe in a lawsuit against Twitter, arguing that, among other transgressions, Twitter violated FOSTA-SESTA. Yet John Doe has pursued this claim all the way up to the Ninth Circuit Court of Appeals—only to be told the platform is protected by Section 230 immunity. In August 2025, the Ninth Circuit reaffirmed a lower court’s decision that John Doe’s case does not meet the standard for FOSTA-SESTA, and that Twitter is still immune from the sex trafficking claims under Section 230. [Note: the Ninth Circuit’s decision represents a huge victory for NCOSE on other issues which are discussed here]
The court’s reasoning is as follows:
“While Twitter’s review of the challenged videos that were posted by a trafficker establishes its knowledge that the videos contained child pornography, Twitter’s failure to respond to demands to remove the videos is not the type of “affirmative conduct” that constitutes “assistance, support, or facilitation” of sex trafficking for which § 1591 [a sex trafficking statute] attaches criminal (and, correspondingly, civil) liability. That is, Twitter did not “actually engage in some aspect of the sex trafficking,” as a legal matter, by failing to remove known child pornography from its platform.”
In other words, the Ninth Circuit acknowledges that Twitter knowingly refused to remove CSAM posted by a child sex trafficker, which is a crime, but says that this does not qualify as facilitating sex trafficking. We believe this decision is wrong, even assuming FOSTA does require a heightened pleading requirement, because these allegations do establish criminal liability under the trafficking statute by then-Twitter. But it reveals the damage that such language has done in sending the message to courts that the priority under Section 230 is still to find immunity for tech platforms.
What’s the Takeaway?
With FOSTA-SESTA, we have learned a difficult but important lesson: Narrow reforms to Section 230 of the Communications Decency Act are not enough. We have tried that approach and it has failed. Congress must move to repeal Section 230 entirely or radically reform it so that tech companies and pornography websites can be held liable under the same standards as every other industry. We must stop giving the most powerful industry in the world special privileges and legal protection when it comes to sexual exploitation.
Further, we cannot continue allowing tech lobbyists to influence online safety bills, removing all their teeth. This is exactly what happened with FOSTA-SESTA. At the time the bill was being debated, NCOSE, other child safety advocates, and senators like Marsha Blackburn raised the alarm that the tech companies’ preferred language was a bad idea and would result in survivors continuing to be denied justice. Yet tech industry lobbyists convinced Congress that this language was necessary, with their usual fear mongering that anything less would “break the Internet.”
In our view, this is why Big Tech should not get deference, or even in some cases veto power, on legislation designed to regulate them. All they will accept is legislation that is ineffective or that has built-in loopholes for Tech. This is playing out now with FOSTA-SESTA. The courthouse doors are closed yet again to sex trafficking survivors while Big Tech continues to facilitate and profit from sexual exploitation as much as ever.
As Congress continues to debate reforms to Section 230, there is considerable danger that FOSTA-SESTA’s failure will be repeated. Join us in urging our lawmakers to learn from the past, to stop bowing to Big Tech’s fear mongering and bribes, and to do the right thing: END SECTION 230 IMMUNITY!
