Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

Social Links: Going Back to Cali

On October 3, 2022, the United States Supreme Court granted certiorari in <a href="https://www.scotusblog.com/case-files/cases/gonzalez-v-google-llc/">Gonzalez v. Google LLC</a><a href="https://www.scotusblog.com/case-files/cases/gonzalez-v-google-llc/">, No.1-1333</a>, to address the scope of <a href="https://www.law.cornell.edu/uscode/text/47/230">Section 230 of the Communications Decency Act</a>.  The Court will consider whether Section 230(c)(1) immunizes website operators and other online service providers when they use algorithms to recommend content to users, specifically terrorism-related videos posted on YouTube by other users of the video-sharing service.  Section 230(c)(1) is famously concise, having been referred to as the “<a href="https://www.jeffkosseff.com/home">the twenty-six words that created the internet.” </a><a href="https://www.jeffkosseff.com/home"> </a>It says simply “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  Since its passage over 25 years ago, courts across the country have often construed the law to provide broad immunity to online service providers that host user-generated content. One example is <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/17-17351/17-17351-2019-09-12.html">Malwarebytes, Inc. v. Enigma Software Group USA, LLC</a>, which stated “[M]any courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.”  Section 230 has facilitated the growth of the modern interactive Web, by protecting companies that host user-generated content from potential liability. But the law has come under intense scrutiny in recent years, with both courts and legislatures chipping away at this important safe harbor.I. Section 230 ImmunityIn 1997, when Section 230 was less than a year old, the Fourth Circuit held in <a href="https://caselaw.findlaw.com/us-4th-circuit/1075207.html">Zeran v. America Online</a> that Section 230 provided online service providers with broad immunity from liability arising from content posted by users. Writing for the court, Judge Wilkinson looked to the congressional purpose behind the statute, characterizing Section 230 as a shield for free speech online. As dozens of state and federal courts around the country adopted Zeran’s holding, this expansive interpretation of Section 230 took hold.In the following decades, courts expanded these protections even further, holding that the Section 230 safe harbor applies regardless of how the plaintiff characterizes the claim, so long as the claim treats the online service provider as the publisher or speaker of content provided by someone else (typically another user).  Courts even held that Section 230 <a href="https://caselaw.findlaw.com/us-9th-circuit/1158381.html">protects users who repost other users’ content</a>, and <a href="https://law.justia.com/cases/federal/appellate-courts/ca5/07-50345/07-50345-cv0.wpd-2011-02-25.html">social media platforms that facilitate communications between users</a>.  In other cases, however, courts have found exceptions to the Section 230 safe harbor*, particularly where an online service provider is more actively involved in developing the content at issue or where the plaintiff’s claim alleges activity that goes beyond the traditional activities of a publisher.  (*We’ve provided a summary of these cases at the end of this post.) This trend towards courts narrowing and finding exceptions to the historically broad Section 230 immunity has accelerated in recent years, and Section 230 has also been the target of various legislative attempts to limit its scope at both the federal and state levels. For years, however, the Supreme Court has remained above the fray, routinely denying certiorari without comment when parties sought Supreme Court review in Section 230 cases. Two years ago, in a statement accompanying the Court’s decision not to review a different case involving the scope of liability under Section 230, Justice Thomas wrote that “in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” Justice Thomas repeated his call <a href="https://www.supremecourt.gov/DocketPDF/21/21-459/193572/20210923155657043_Petition%20for%20Writ%20of%20Cert%20-%20Doe%20v%20Facebook.pdf">to review Section 230 earlier this year</a>.Now some 25 years since its passage, the Court has for the first time decided to take up the important question of how broadly the protections afforded by Section 230 apply. II. Gonzalez v. GoogleThe family of Nohemi Gonzalez sued Google under the <a href="https://www.govinfo.gov/app/details/USCODE-2015-title18/USCODE-2015-title18-partI-chap113B-sec2333">Anti-Terrorism Act</a>, alleging that, by recommending ISIS recruitment <a href="https://www.govinfo.gov/app/details/USCODE-2015-title18/USCODE-2015-title18-partI-chap113B-sec2333">videos</a> through its YouTube algorithm, Google could be held accountable for Nohemi’s death during an ISIS attack in Paris in November 2015.The family first brought suit in the Northern District of California, alleging that Google was liable for Nohemi’s death under the Anti-Terrorism Act, and that through its ownership and operation of YouTube, Google knowingly provided material support to ISIS in the form of its YouTube platform.  In their amended complaint, the plaintiffs alleged that YouTube assisted ISIS in spreading its message by recommending ISIS videos to users using an algorithm designed to introduce users to content they might be interested in based on their “account information and characteristics.” On August 15, 2018, the lower court in the Northern District of California granted Google’s motion to dismiss, holding that the claims were barred by Section 230, and that algorithmic recommendations of ISIS content did not render Google an “information content provider.” Gonzalez’s family appealed to the Ninth Circuit, which affirmed the lower court’s holding that plaintiffs’ claims were mostly barred by Section 230.  The court rejected plaintiffs’ argument that the Anti-Terrorism Act imposes on Google a duty not to support terrorists, and agreed with Google’s argument that the thrust of plaintiffs’ claims was that Google did not do enough to block or remove content, which necessarily required the court to treat Google as a publisher.  Throughout the opinion, the court expounded upon the focus and goals of Congress in enacting Section 230 (Gonzalez, 2 F.4th 871, 896–97).In their petition to the Supreme Court, the plaintiffs accepted that Section 230 protects Google when ISIS posts videos on YouTube, and focused instead on YouTube recommendations of the videos at issue.  They argue that major tech companies vie for users’ attention and, in order to increase the time that people spend on their websites, provide algorithmic recommendations of material that may interest users.  These recommendations, the plaintiffs contend, move beyond “traditional editorial functions.” The plaintiffs argued that application of Section 230 to these recommendations would “remove all civil liability incentives for interactive computer services to eschew recommending ... harmful materials, and den[y] redress to victims who could have shown that those recommendations had caused their injuries.”  The crux of the plaintiffs’ legal argument is that recent decisions granting Section 230 protections for recommendations were wrongly decided, and that the Court should look to the text of the statute to return to a narrower interpretation of its protections.In its opposition, Google emphasized that both circuit courts that had considered content recommendations had determined that they were protected by Section 230, and that the Supreme Court had denied certiorari in both cases.  It went on to argue that, if YouTube recommendations are not shielded from legal liability, “Section 230 would be a dead letter.”  It noted that every publication provides recommendations to users simply through prompts like “read on” or “click here,” and that these are protected as typical publisher functions.Although the questions presented do not address Section 230, the Supreme Court also agreed to hear another case decided in the same Ninth Circuit opinion seeking to hold a number of <a href="https://www.supremecourt.gov/DocketPDF/21/21-1496/226415/20220526180216120_21-xxxx%20-%20Twitter%20Inc.%20v.%20Taamneh%20-%20cert.%20petition.pdf">social media companies liable for extremist content published on their platforms following terrorist attacks</a>.III. Pending Supreme Court’s ReviewGonzalez presents a narrow but important question, asking whether recommendations provided by online platforms qualify for Section 230 immunity. By deciding to hear this case, the Court has shown for the first time that it is ready to make a decision regarding the scope of Section 230, at a time when the statute has never been more relevant, or more controversial. A decision in this case is expected before the Court breaks for its summer recess in July 2023. * Additional examples include: <div><ul><li><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/04-56916/0456916-2011-02-25.html">Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC</a><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/04-56916/0456916-2011-02-25.html">, 521 F.3d 1157 (9th Cir. 2008)</a>, holding that Section 230 did not apply where a questionnaire on the defendant’s website asked users to submit discriminatory responses;</li></ul></div><div><ul><li><a href="https://www.casemine.com/judgement/us/5914b18eadd7b0493475a0e1">F.T.C. v. Accusearch Inc.</a><a href="https://www.casemine.com/judgement/us/5914b18eadd7b0493475a0e1">, 570 F.3d 1187 (10th Cir. 2009</a>), holding that Section 230 did not apply when the service provider was itself an “information content provider” with respect to disclosure of protected materials; </li><li><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/05-36189/05-36189-2011-02-25.html">Barnes v. Yahoo!, Inc.</a><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/05-36189/05-36189-2011-02-25.html">, 570 F.3d 1096 (9th Cir. 2009),</a> as amended (Sept. 28, 2009), holding that Section 230 did not apply when the service provider agreed to remove content but failed to do so; and</li></ul></div><div><ul><li><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/12-56638/12-56638-2014-09-17.html">Doe v. Internet Brands, Inc.</a><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/12-56638/12-56638-2014-09-17.html">, 824 F.3d 846 (9th Cir. 2016)</a>, holding that Section 230 did not apply when a website provider has knowledge of criminal activity and negligently failed to warn users of a known risk. </li></ul></div>

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

L.W. v. Snap Inc.,  675 F. Supp. 3d 1087 

Wamai v. Industrial Bank of Korea , 2021 WL 3038402 

In re Maxus Energy Corp.

In re Energy Future Holdings Corp.

James Paul McCartney v. Sony/ATV Publishing LLC

NFL Enterprises LLC v. EchoStar Satellite LLC

VOOM HD Holdings LLC v. EchoStar Satellite LLC

Change Healthcare Operations, LLC v WebMD Health Corp. 2017 WL 6610411  

Register.com, Inc. v. Verio, Inc.

Komag, Inc. v. Asahi Glass Co. Ltd.

Asante Techs. Inc. v. PMC–Sierra, Inc.

Biovail Corp. v. S.A.C. Capital Mgmt. 2009 WL 2844404 

Multi–Faceted Investigation of University Grants

Confidential International Arbitrations

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Alex advises on all aspects of complex commercial litigation in federal and state trial and appellate courts and in arbitration. He has represented U.S. and international clients in actions involving 

J. Lawrence

J. Alexander Lawrence

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Associate

Dillon Kraus is an associate in Morrison Foerster’s Privacy + Data Security, Investigations + White Collar Defense, and Commercial Litigation + Trial groups and is based in the firm’s New York office.

Dillon Kraus

Supreme Court to Address Section 230 for First Time

On October 3, 2022, the United States Supreme Court granted certiorari in Gonzalez v. Google LLC, No.1-1333, to address the scope of Section 230 of the Communications Decency Act.  The Court will consider whether Section 230(c)(1) immunizes website operators and other online service providers when they use algorithms to recommend content to users, specifically terrorism-related videos posted on YouTube by other users of the video-sharing service.  

Supreme Court to Address Section 230 for First Time

On October 24, 2022, the Ninth Circuit ruled that <a href="https://www.law.cornell.edu/uscode/text/47/230">Section 230 of the Communications Decency Act</a> shielded Reddit Inc. from liability under the <a href="https://www.americanbar.org/groups/human_rights/human-trafficking/trafficking-legislation/">Trafficking Victims Protection Reauthorization Act (TVPA)</a>. The court considered the text of a 2018 amendment to Section 230, known as the <a href="http://www.congress.gov/115/plaws/publ164/PLAW-115publ164.pdf">Fight Online Sex Trafficking Act (FOSTA)</a>, which created a carve-out to Section 230’s broad protections by allowing victims to bring claims against platforms that aided in their trafficking. The <a href="https://caselaw.findlaw.com/us-9th-circuit/1972265.html">Ninth Circuit held that the FOSTA exception does not apply where a provider does not “knowingly benefit” from such trafficking</a>.  This is the first time that a federal court of appeals has interpreted how broadly the FOSTA exception to Section 230 applies.Section 230 Protections and FOSTASection 230, once hailed as “<a href="https://www.theatlantic.com/business/archive/2013/09/the-law-that-gave-us-the-modern-internet-and-the-campaign-to-kill-it/279588/">the law that gave us the modern Internet</a>,” provides broad immunities to internet platforms that host third-party content. It has emerged in recent years as the cause of much debate. In 2018, FOSTA was enacted as a response to sex trafficking claims against Backpage.com, and the <a href="https://www.vox.com/culture/2018/4/13/17172762/fosta-sesta-backpage-230-internet-freedom">belief that Section 230 insulated the site from liability for facilitating sex trafficking</a>. FOSTA provides that Section 230 does not impair enforcement of “any State criminal prosecution or civil enforcement action targeting conduct that violates a Federal criminal law prohibiting [sex trafficking],” or “impair the enforcement or limit the application of section 1595 of title 18, United States Code.” While there has been much discourse about whether and how to amend Section 230, FOSTA is the only piece of proposed federal legislation to date that has become law.Section 230 provides important protections for many major companies, and these companies, alongside proponents of an uncensored Internet, raised concerns that FOSTA would have deleterious ripple effects, including limiting free speech. The central question that concerned platforms was whether FOSTA meant that they could be held liable when their users violated the sex trafficking statutes underlying FOSTA, or whether they themselves had to violate those laws.The District Court OpinionReddit is a social news aggregation and discussion website that allows users to create forums, or “subreddits,” based on specific interests or community themes. It is essentially a huge collection of forums in which users can comment on and share content, including photos, videos, and links to other sites. Given that it hosts large quantities of user-generated content, Reddit relies heavily on Section 230 to shield it from liability.In April 2021, the plaintiffs sued Reddit as part of a putative class action, Does v. Reddit, alleging that Reddit not only failed to stop, but <a href="https://caselaw.findlaw.com/us-9th-circuit/1972265.html">actively profits from, child sexual exploitation materials (CSEM) on its site</a>.  The plaintiffs alleged that Reddit was lackluster in its attempts to remove CSEM from its site and to enforce its own CSEM policies.For instance, Doe 1 alleged that her ex-boyfriend posted sexually explicit images and videos of her, taken while she was 16, to Reddit without her consent.  Then, each time she reported the CSEM of herself to subreddit moderators, the moderators were slow to act, and when the content was eventually removed, it would be added again in minutes.  The complaint alleged that Reddit was in violation of the TVPA, which makes it illegal for any entity to knowingly benefit financially from sex trafficking, including when a minor is made to engage in a commercial sex act.  The plaintiffs sought to represent a class of people who were under 18 when they appeared in an image or video uploaded to Reddit in the last 10 years.  Reddit moved to dismiss, arguing that the plaintiffs’ claims were barred by Section 230.Judge Selna, in the Northern District of California, granted Reddit’s motion to dismiss for failure to state a claim, holding that Reddit was protected by Section 230 because Reddit was clearly an interactive computer service, rather than an information content provider, as the plaintiffs contended.  The plaintiffs argued that Reddit was responsible in whole or in part for the creation or development of information, making it an information content provider not protected by Section 230. But the court held that Reddit simply provided “neutral tools,” which is not sufficient to make an entity an information content provider.  Further, the court held that Reddit’s system of community moderation was not particularly permissive of CSEM material, and so did not materially contribute to users posting CSEM on its website. Lastly, but most significantly, the court held that, to avoid Section 230 immunity under FOSTA, the plaintiffs had to show that Reddit knowingly facilitated posting of CSEM.The Ninth Circuit OpinionOn appeal, the Ninth Circuit considered the scope of FOSTA’s <a href="https://caselaw.findlaw.com/us-9th-circuit/1972265.html">exception to Section 230 immunity for civil child sex trafficking claims</a>.  The court opened with a blunt factual framing, stating that, as of 2021, when this suit was filed, there were numerous subreddits that explicitly marketed themselves as fora for CSEM, with names like /r/BestofYoungNSFW and /r/YoungGirlsGoneWild. The court then gave a clear statement of the breadth of Section 230’s protections, “this provision immunizes providers of interactive computer services against liability arising from content created by third parties,” and an affirmation that this protection is “robust.”The court outlined the multiple statutory provisions that were implicated in its analysis, first Section 230; then FOSTA, which amended Section 230; and then two sections of the TVPA that FOSTA incorporates, 18 U.S.C. §§ 1591 and 1595.  In concert, the provisions mean that “websites are generally immune from liability for user-posted content, but that immunity does not cover sex trafficking claims if the conduct underlying the claim violates 18 U.S.C. § 1591.”  Reddit argued that a website may only be liable for its own criminal conduct, while the plaintiffs argued that a website may be liable as a beneficiary when someone else’s conduct violated the criminal statute.To resolve the dispute, the Ninth Circuit considered the plain text of FOSTA, as well as the underlying provisions of the TVPA.  <a href="https://www.law.cornell.edu/uscode/text/18/1591">Section 1591 of the TVPA</a> makes it a crime to knowingly benefit from participation in sex trafficking, while <a href="https://www.law.cornell.edu/uscode/text/18/1595">section 1595</a> creates a private right of action for victims of sex trafficking. In its analysis, the court concluded that FOSTA’s plain text, and Supreme Court precedent interpreting a similar immunity exception, required the court to look to the elements of the “underlying” claim. As to the underlying claims, the court found that a website can only be held liable if its own conduct—not a third party’s—violates section 1591.  Meanwhile, the text of section 1595 makes clear that the defendant-website’s conduct is essential to the survival of the claim, and even the structure of the plaintiffs’ complaint emphasized the importance of Reddit’s conduct.  The court therefore concluded that, because an interpretation of the immunity provision in FOSTA requires an interpretation of the underlying statutes, and because the underlying statutes look to the defendant’s own conduct, in order for a plaintiff to invoke FOSTA’s immunity exception, he or she must plausibly allege that the website’s own conduct violated section 1591.   This resolved the question that had previously split district courts in the Ninth Circuit.  An interesting note regarding this analysis is that, in order to determine whether the FOSTA exception applied, the court had to consider whether the underlying <a href="https://caselaw.findlaw.com/us-9th-circuit/1972265.html">TVPA provisions applied in the first place</a>.  In its analysis, it determined that Reddit was not liable under section 1595 at all, because that cause of action required that Reddit’s own conduct to violate section 1591, not the conduct of its users.  This finding ultimately means that the plaintiffs’ claims against Reddit could not have survived, even if Section 230 did not exist at all.Beyond the text, the court looked to FOSTA’s original legislative proponents’ understanding of how FOSTA would be interpreted. Congress passed FOSTA in 2018 because courts had shown they were reluctant to hold websites liable in civil trafficking suits stemming from user posts, even when the website had participated in the scheme. Further, although Section 230 as drafted did not immunize websites like Backpage.com from federal criminal sex trafficking laws, it was unclear whether states could bring analogous prosecutions.  Critics of the bill were concerned it went too far in undermining Section 230 and would lead to a deluge of frivolous litigation targeting law-abiding intermediaries.  The Senate altered the bill to its current form, only abridging protections for websites that knowingly facilitate sex trafficking.  The court acknowledged that, as enacted, 47 U.S.C. § 230(e)(5)(A), the FOSTA amendment, retains only a “limited capacity to accomplish its original goal of allowing trafficking victims to hold websites accountable,” but that this flaw, or feature, is not one that can be rewritten by judicial fiat.Having concluded that to overcome Section 230 immunity for sex trafficking claims a plaintiff must plead and prove that a defendant-website’s own conduct violated 18 U.S.C. § 1591, the Ninth Circuit determined that the allegations that Reddit “turned a blind eye” to the unlawful content posted on its platform were not allegations that it actively participated in sex trafficking.  As such, the court affirmed the district court’s decision to dismiss the plaintiffs’ claims.What It MeansThis ruling is a significant win for proponents of broad and unfettered Section 230 protections. Even in the face of disturbing factual allegations, the Ninth Circuit interpreted FOSTA narrowly according to its text, holding that it only applies when websites knowingly facilitate sex trafficking conduct.

Ninth Circuit Interprets FOSTA Restriction on Section 230 Narrowly

On October 24, 2022, the Ninth Circuit ruled that Section 230 of the Communications Decency Act shielded Reddit Inc. from liability under the Trafficking Victims Protection Reauthorization Act (TVPA).  The court considered the text of a 2018 amendment to Section 230, known as the Fight Online Sex Trafficking Act (FOSTA), which created a carve-out to Section 230’s broad protections by allowing victims to bring claims against platforms that aided in their trafficking. The Ninth Circuit held that the FOSTA exception does not apply where a provider does not “knowingly benefit” from such trafficking.  This is the first time that a federal court of appeals has interpreted how broadly the FOSTA exception to Section 230 applies.

Ninth Circuit Interprets FOSTA Restriction on Section 230 Narrowly