Kik is a news service. "The plaintiff alleges that the defendants know that sexual predators use their service to hunt minors, but have not issued warnings or guidelines to protect minors from such abuses." The plaintiff claims she received unwanted adult nude photos. However, it is not clear from the statement whether senders actually tried to recruit them into the sex trade.
The plaintiff sued Kik on a civil action under 18 USC 1595. Kik defended on Section 230. The court says this is a straightforward section 230 case for FOSTA:
Without the nature of the plaintiff's claims in this case, the defendants would meet the elements for CDA immunity: you are an interactive computer service provider, the claim is based on information provided by another, and the claim would treat the defendants as if they had published and requested the photos in question …. If it weren't for FOSTA, the defendants in this case would be completely immune from liability under the CDA.
Congress passed FOSTA to allow more private lawsuits against Internet services. The question is exactly what FOSTA did – a question that is difficult to answer due to the terrible elaboration of FOSTA. Court rulings that attempt to navigate the interaction between FOSTA and Section 230 are extremely complex and technical and therefore difficult to understand.
The relevant language of FOSTA excludes from Section 230 (c) (1) "Claims in a civil action under Title 18 Section 1595 if the conduct underlying the claim is in violation of Section 1591 of that Title." To me, that language makes it clear that any civil claim attempting to circumvent Section 230 must meet elements of 1591 (a criminal law) and 1595 (a civil law). FOSTA did not open the doors to all sex trafficking claims: “Had Congress intended to revoke CDA immunity for all sex trafficking claims on websites (as argued by the plaintiff), it could have done so; but it didn't. The simple language of the statute only removes immunity for conduct that violates 18 USC § 1591. "
The plaintiff attempts to show that Kik broke 1591 by engaging in a sex trafficking venture. 1591 defines this term as "knowingly assisting, assisting or facilitating a violation of subsection (a) (1)"; 1595 does not define the term. However, the 1595 has a "know or should have known" standard that is more plaintiff-friendly than the 1591 "knowingly" standard. The court says that in order to make an allegation of 1595 that is not precluded by Section 230, the plaintiff must find a 1591 violation – and "Section 1591 requires the accused's knowledge and active participation in the sex trade." The complaint did not make the necessary allegations.
(Also of interest to future defendants: The court says, "The defendants argue that FOSTA's Congressional history shows that Congress only intended to create a narrow exemption from the CDA for" openly malicious actors like Backpage "where this was for a plausible claiming factual knowledge and apparent involvement "and that a determination of actual knowledge and apparent involvement in a sexual trafficking enterprise is required to defeat CDA immunity. This is consistent with the language of FOSTA . "In a footnote, the court added:" See 164 Cong. Rec., S1860-62 ("(FOSTA) is a narrow piece of legislation that is designed to ensure that Section 230 of the Communications Decency Act allows websites such as Backpage, which knowingly provide the Promote sex trafficking, no legal immunity granted. "); HR Rep. No. 115-572, point 5 (" General knowledge that sex trafficking takes place on a website t, is not sufficient as the knowledge element has to be proven for a specific victim ”).
This opinion is therefore confusing as the court goes through several levels of exceptions to the rule:
- The plaintiff argued that Kik did not protect her;
- Kik cited Section 230 to defend himself against this claim;
- The plaintiff argued that she met the 1595 standards to get about 230;
- Kik argued that it had to satisfy also in 1591 and that Kik lacked the scientist required in 1591; and
- The court says that Kik actually lacked the scientist claimed by 1591, so Section 230 still applies to Plaintiff's claim of 1595.
If this hurts your head, I totally understand. You are not the only one.
Geeks from Section 230 will find that Section 230 is only available if Kik does not have a 1591 Scientist. This is unusual in the teaching of section 230. For other aspects of Section 230 (c) (1), defendants qualify for defense regardless of their scientist. The fact that the defendant's (missing) scientist is a requirement for Section 230 shows how FOSTA has restored the moderator's dilemma.
The court grants Kik's motion to be dismissed without a permit. The plaintiff requested the addition of negligence and liability claims, but these are clearly excluded in Section 230. The plaintiff apparently also wanted to add a non-warning claim to use the Internet Brands workaround to Section 230. The court says, "Plaintiffs failure to warn claims is inextricably linked to the malicious content requested and posted by Kik's users. It is to this kind of claim that Congress ruled that interactive computer web site providers should be immune. "
Another thing that makes this case confusing is that the facts don't seem to suggest any actual or attempted sex trafficking. In a footnote, the court says: "The plausor does not allege facts that would plausibly establish that the defendants knew or should have known about their particular situation, or that the identified Kik users used Kik for sex trafficking." Perhaps the court would have approached opinion differently if the facts about sex trafficking had been clearer.
This decision addresses the same reason as JB's recent (and unquoted) decision against Craigslist. In this case it was also about the ambiguity of the scientists of 1591/1595 about participation in a company. However, in the JB case, the court said the rate was not limited by a scientist requirement of 1591, a seemingly directly opposite result of the Kik ruling. Craigslist still won the JB case for other reasons (lack of causality). Given the apparent conflict in the cases, it is likely that the 1591/1595 Scientist Question will appear more in court. FWIW, I think the Kik court got it right. In my view, during the development of FOSTA, it was always clear that civil plaintiffs had to meet the stricter standards of 1591 – essentially proving that a crime occurred but using the lower standards of evidence available for civil claims.
This decision can have an impact on the EARN IT Act. I believe that the Kik messages in question in this case were private messages that should be regulated by the ECPA, which means that Kik was not allowed to read them. In other words, the plaintiff wanted to hold Kik liable for private messages that Kik could not have blocked or possibly prevented. This comes within the territory of the EARN IT Act, which appears to seek to remove the protection of private messages (which contain CSAM) under Section 230, and therefore seeks to get Internet services to control the content of private messages. This decision states that Section 230 applies to private messages that would be rolled back by the EARN IT Act – with unsafe, but almost certainly undesirable, consequences.
Case Quote: Doe v Kik Interactive, Inc., Case No. 20-60702-CIV-SINGHAL (S. D. Fla. Aug. 31, 2020)
More articles on SESTA / FOSTA:
* Section 230 protects Craigslist from sex trafficking claims despite FOSTA – JB against Craigslist
* Facebook still can't dismiss victims of sex trafficking in Texas State Court
* Craigslist Denies Section 230 Immunity for 2008 Classified Ads – ML vs. 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 versus USA
* New FOSTA Civil Lawsuits Advance Expansive Legal Theories Against Unexpected Defendants (Guest Blog Post)
* Section 230 helps Salesforce resolve the sex trafficking lawsuit against Doe v. Defeat Salesforce
* Latest link wrap to the episodes of FOSTA
* Section 230 does not end lawsuit alleging Facebook facilitated sex trafficking – Doe v. Facebook
* New essay: The Complicated History of FOSTA and Section 230
* Who has benefited from FOSTA? (Spoiler: Probably nobody)
* FOSTA's political curse
* FOSTA does not help Pro Se Litigant's claim to defamation against Facebook
* Constitutional challenge for FOSTA rejected due to lack of status (guest blog post)
* An update on the Constitutional Court Challenge to FOSTA – Woodhull Freedom v USA (guest blog post)
* Indianapolis Police have recently been blinded for closing the backpage.
* Constitutional Challenge vs. FOSTA Filed – Woodhull vs. US (guest blog post)
* Keep FOSTA up to date since its inception (A Linkwrap)
* Further episodes of the "worst of both worlds FOSTA"
* "The Worst of Both Worlds" FOSTA signed the law and completed section 230 evisceration
* Backpage loses another section 230 Motion (again without SESTA / FOSTA) – Florida Abolitionists v. Backpage
* District Court decision highlights Congress's rush to be the worst of both worlds FOSTA – Doe 1 BC Backpage
* More on the unconstitutional retroactive effect of "Worst of Both Worlds FOSTA" (guest blog post)
* Senate passes "Worst of Both Worlds FOSTA" (Linkwrap)
* Why FOSTA's restriction on prostitution subsidies violates the first change (guest blog post)
* SESTA sponsors still do not understand section 230 (as they are about to eviscerate it).
* Can the "worst of both worlds FOSTA" be saved? Maybe … and you can help (URGENT call to action)
* Congress is likely to ruin section 230 this week (SESTA / FOSTA updates)
* What's new at SESTA / FOSTA (edition of January 17, 2018)
* New House Bill (replacing FOSTA) has a more promising approach to regulating the online sex trade
* My testimony on the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
* How SESTA undermines the provisions of Section 230 on the Good Samaritan
* The manager change for SESTA slightly improves an even more terrible calculation
* Another human trafficking expert raises concerns about SESTA (guest blog post)
* Another SESTA Linkwrap (week of October 30th)
* Latest SESTA developments (A Linkwrap)
* Section 230 applies to "inconsistent" state laws (guest blog post)
* A rundown of Congress's upcoming sex trafficking laws (guest blog post)
* The busts of the DOJ from MyRedbook & Rentboy show how the backpage can be prosecuted (guest blog post)
* Problems with the retroactive delivery of SESTA (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 (cross-post) masterpiece
* Executives on the back face money laundering fees despite Section 230 – Persons against Ferrer
* How Section 230 Helps (and SESTA Would Harm Victims of Sex Trafficking) (Guest Blog Post)
* Senator Portman says SESTA will not interfere with the Good Samaritan's defense. He's wrong
* Senate Act “Stop Enabling Sex Traffickers of 2017” – and Section 230's upcoming evisceration
* The 2017 Bill “Allow States and Victims to Fight Online Sex Trafficking” would be bad news for Section 230
* WARNING: The No Immunity For Internet Sex Traffickers Bill poses a major threat to Section 230
* The Effects of Exclusion from State Crimes in 47 United States. Section 230 Immunity