A lawsuit in California can proceed against Twitter by two young men who say the site was slow to remove explicit materials showing them when they were underage.
A federal judge dismissed several claims against Twitter on Thursday. Yet he ruled that a legal shield for internet platforms didn't bar a suit under a law designed to penalize those who benefit from sex trafficking — in a rare decision on the impact of recent carveouts to the shield.
Twitter and other social media sites rely on that provision, known as Sec. 230, to exit from all kinds of lawsuits over user content. But in 2018, Congress enacted changes, known as FOSTA, that opened the door to suits under the trafficking law.
"No tech company should be allowed to profit from and outright ignore child sexual abuse material," said Peter Gentala, senior legal counsel for the National Center on Sexual Exploitation and a lawyer for the plaintiffs.
According to their complaint, the two boys, known only as John Doe #1 and John Doe #1, were blackmailed into performing sexual acts when they were approximately 13. Video of them eventually found its way to Twitter, where it racked up hundreds of thousands of views. In a response to a complaint from one of the boys, which included his ID, Twitter said it had "reviewed the content, and didn't find a violation of our policies," although it did remove the videos a few days later after the intervention of an agent from the Department of Homeland Security.
Twitter described "mistakes or delays" in applying measures to combat child exploitation and countered that the carveouts to Sec. 230 allowed lawsuits only for more knowing and egregious conduct. It also said it did not violate the underlying trafficking statute.
"We disagree with the Court's ruling and its interpretation of relevant law, and we strongly deny that Twitter benefited in any way from the activities alleged in this complaint," a Twitter spokesperson said on Friday, adding that the company has "heavily invested in technology and tools to proactively enforce our policy" against child sexual exploitation.
Online platforms say that Sec. 230 ensures free speech while also helping to clean up the internet because the provision allows sites to remove users' content without fear of assuming liability themselves. A growing number of critics, though, say Sec. 230 means companies have too little incentive to remove the most dangerous and horrific posts online — a position that led in part to FOSTA.
Yet FOSTA has also proven controversial. Supported by many groups for victims of trafficking, it passed in an overwhelmingly bipartisan vote over the objection of many tech advocates who said it would squash free speech while doing little to disrupt trafficking. Although FOSTA has rarely been invoked in legal actions, the law has also resulted in sites taking down legal pornography, educational content and measures that sex workers take to ensure their safety.
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