After 30 years of Section 230 of the Communications Decency Act allowing tech companies and predators to wreak havoc in online spaces, NCOSE is demanding an answer from the nation’s highest court: How do we protect survivors of online sexual abuse with Section 230 in place?
Time and time again, Section 230 has allowed sexual exploitation to run rampant and has left survivors without any recourse. There are countless, heartbreaking stories, where Section 230 blocked justice for survivors. But one of them is bringing the law to center stage:
“We’ve reviewed the content and did not find a violation of our policies, so no action will be taken at this time.”
This is how Twitter (now X) responded after John Doe reported child sexual abuse material (CSAM, the more apt word for “child pornography”) of him and his friend that was circulating on the platform. At age thirteen and fourteen, the boys were coerced by an online sex trafficker into making those videos, and years later, they showed up on Twitter. Despite John and his mother’s efforts, including sending a picture of John’s ID to prove he was a minor, Twitter flatly refused to remove the illegal CSAM.
John and his mother, Jane Doe, were left absolutely heartbroken. But they were ready to take action. The NCOSE Law Center and the Haba Law Firm have stood alongside John and his family by representing them in a lawsuit against Twitter for this blatantly illegal behavior.
Until recently, we have faced an uphill battle in overcoming Section 230. A lower court initially dismissed the entire lawsuit under Section 230, stating that Twitter is immune from liability under this law. But after we appealed this decision in the Ninth Circuit court (the second highest court under the Supreme Court), some aspects of this decision have been reversed and John and Jane’s lawsuit against Twitter has been allowed to proceed!
However, the Ninth Circuit dismissed the most important claims—civil remedies for violations of CSAM and sex trafficking laws—in what the NCOSE Law Center believes was an erroneous ruling. This is why we have filed a petition for certiorari, meaning we have requested that the Supreme Court of the United States review this case. If our petition is successful, this will be the first time the nation’s highest court interprets Section 230 of the Communications Decency Act!
Read our petition to the Supreme Court here, or continue reading for a summary and analysis.
The Importance of a Supreme Court Interpretation of Section 230
John and Jane’s suit against Twitter is the first federal lawsuit to proceed against a social media company for its failure to report child sexual abuse material (CSAM) to the National Center for Missing and Exploited Children (NCMEC), and for the harm it caused to children through this negligence, overcoming Section 230 immunity.
Unfortunately, in a shocking decision, the Court held that Section 230 did provide Twitter with legal immunity for knowingly possessing and distributing CSAM, and for knowingly benefitting from a sex trafficking venture. One of the broadest and most disastrous interpretations of Section 230 yet!
Getting a Section 230 case to the Supreme Court has been a goal of the NCOSE Law Center since its inception. Because, over the past thirty years, Section 230 jurisprudence has caused serious confusion. Many courts have interpretated Section 230 far more broadly than the language, history, or purpose of the statute can justify. While others have recognized its limits. But unfortunately, far too many victims have had the courthouse doors slammed shut while billion-dollar Tech companies avoid accountability.
It is time for the Supreme Court to provide much needed clarity on the proper scope and application of Section 230.
Watch the podcast episode here.
The Ninth Circuit’s Erroneous Rulings
Twitter’s acknowledgement that it reviewed the illegal videos of John Doe yet decided to keep them on the platform anyway was an act of knowing possession and distribution of CSAM (or “child pornography”) under the law. This is a criminal act for which Congress has expressly authorized civil penalties.
The text of Section 230 itself clarifies that it should have “no effect on criminal law” (230 (e)(1)). Even more specifically, it says, “Nothing in this section shall not be construed to impair the enforcement of section … 110 (relating to sexual exploitation of children).”
Yet despite this, the Ninth Circuit interpreted 230 as placing Internet platforms above the law criminalizing the sexual exploitation of children through CSAM.
Further, the Ninth Circuit’s ruling that Section 230 grants Twitter immunity for knowingly benefitting from a sex trafficking venture flies directly in the face of FOSTA-SESTA (Fight Online Sex Trafficking Act and Stop Enabling Sex Trafficking Act). FOSTA-SESTA was passed in 2018 specifically to clarify that Section 230 immunity does not immunize tech companies for knowingly benefitting from a sex trafficking venture. The fact that John and his friend were coerced into making these videos, which were then monetized through their publication on Twitter, constitutes a sex trafficking venture.
Ultimately, the lesson has been learned: narrow reforms to Section 230 have not and will not work.
As was the case with FOSTA-SESTA, Big Tech lobbyists will intentionally influence the drafting and passage of these reforms to ensure they have no teeth. We need to repeal Section 230 completely or enact radical reform and allow the tech industry to be sued like any other industry.
Section 230 Turns 30 This Month: How Did We Get Here?
Passed in 1996, Section 230 of the Communications Decency Act was enacted at the dawn of the Internet. While it was initially intended to protect children from harmful material, sadly, the result has been the opposite.
At the time of its passage, Section 230 was meant to ensure that good faith online content moderation could not be used as a reason to hold platforms liable for things they missed or for all bad conduct by third parties on their site. This was an attempt by Congress to balance the need for child protection online on the one hand and encourage the growth of a new industry on the other.
Today, we have seen a drastically different reality play out. With the digital revolution that has taken off since the turn of the century, Section 230 has effectively served as a shield for tech companies when their platforms facilitate exploitation. Further, because this exploitation often leads to immense profits for tech companies, they are not engaging in sufficient, good-faith content moderation, as the authors of Section 230 presumed they would.
In these past 30 years, the fallout has been disastrous: Women and children are being kidnapped and sex trafficked by predators they meet on social media. Young kids are connecting with strangers in online chatrooms, where they are coerced into sending sexually explicit videos. And with the explosion of AI, predators are even using AI to generate sexually explicit images of people without their consent.
All of this happening, and Big Tech fears no consequences, thanks to Section 230.
ACTION: Donate to the NCOSE Law Center
The NCOSE Law Center is fighting hard to overturn harmful interpretations of Section 230 by petitioning the Supreme Court to weigh in. This would bring justice not only for John Doe, but would set a nation-wide precedent to end the era of Big Tech immunity.
The NCOSE Law Center relies largely on donations from people like you to keep doing our work. We serve all our survivor clients pro-bono.
Will you consider becoming a monthly donor to the NCOSE Law Center, to fuel justice for survivors and Big Tech accountability?
