Eleventh Circuit Rejects Federal Child Porn/Sex Trafficking Claims Against Video Chat Service Omegle

From M.H. v. Omegle.com LLC, decided yesterday by the Eleventh Circuit (Judges Andrew Brasher and Ed Carnes, joined as to the sex trafficking claim by Judge Barbara Lagoa):

The facts of this appeal underscore that the internet in general and social media in particular pose grave risks to children. When C.H. was eleven years old, a stranger connected with her through Omegle.com, an online social media platform that places people in video chatrooms. The stranger then tricked and threatened C.H. into making child pornography. Unfortunately, this problem is not unique to Omegle.com. Our precedents reflect that child predators use many other online platforms to find and exploit their victims.

Through her parents, C.H. sued Omegle.com LLC. She alleged that Omegle.com violated 18 U.S.C. § 2255, known as "Masha's Law," by knowingly possessing child pornography. She also sued Omegle.com for violating the Trafficking Victims Protection Reauthorization Act, which forbids knowingly benefitting from participation in a sex trafficking venture. The district court dismissed her claims under section 230 of the Communications Decency Act of 1996. That section provides that for purposes of civil liability, "[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by" a user.

C.H.'s appeal presents two questions of statutory interpretation. First, we must decide whether she stated a claim under Masha's Law for the knowing possession of child pornography. We conclude that she has not. Second, we must decide whether C.H. can bring her sex trafficking claim because of an exception to section 230 under the Fight Online Sex Trafficking Act ("FOSTA"). We believe she cannot. The FOSTA exception applies only to conduct that meets the standard for criminal liability for sex trafficking. Here, C.H. does not plausibly allege that Omegle.com had actual knowledge that it benefited from sex trafficking, which is the standard for criminal liability. Accordingly, we affirm the district court….

Here's the core of the court's analysis rejecting the child pornography claims:

The complaint fulsomely recounts John Doe's conduct in creating, accessing, and distributing child pornography, but it does not make comparable factual allegations about Omegle.com. Instead, C.H.'s parents allege that Omegle.com allowed its "website to become a means of online child exploitation despite the risk to children like C.H." C.H.'s parents allege that, because child exploitation on Omegle.com is so pervasive, the company knew that people like John Doe would exploit its technology to connect with minors for the purposes of recording images of child pornography. Despite this knowledge, Omegle.com "paired C.H. with a stranger knowing that C.H. was a minor child at risk of becoming a victim of child pornography."

These are disturbing allegations, but they are insufficient to state a claim against Omegle.com for possessing child pornography. First, the operative complaint does not allege that Omegle.com ever possessed or accessed the images that John Doe recorded. In fact, the complaint does not allege that Omegle.com even had the ability to access its user's recordings in general or John Doe's recordings of C.H. in particular. Second, and relatedly, there are no allegations that would support the conclusion that Omegle.com knowingly possessed or accessed John Doe's recording knowing it was child pornography. We have held that liability under section 2252A requires a finding that the defendant knowingly possessed sexually explicit material and had knowledge that the subject of the material was a minor. But there are no factual allegations that suggest that Omegle.com knew it possessed John Doe's recording of C.H. or knew anything about the content of that recording.

C.H.'s parents rely on Doe #1 v. MG Freesites, LTD (N.D. Ala. 2022), in which a district court denied a motion to dismiss a claim under Masha's Law. But we think comparing this case to MG Freesites underscores that C.H.'s parents have not sufficiently alleged possession or knowledge. There, the plaintiffs alleged that users "uploaded" child pornography videos to a website that itself "generated 'thumbnail' preview images from those videos," which allowed users to view the videos on the website. As the district court explained, the plaintiffs also alleged that the defendants "actively control which videos are posted," "review every video," "retitle videos indicating [child pornography] but leave the videos available for distribution," and "create and suggest tags indicating [child pornography] for uploaders to use." C.H.'s parents have not made similar allegations that Omegle.com hosted, maintained, reviewed, distributed, made available, modified, or accessed the screenshots that John Doe created of C.H. or any similar videos or pictures….

And here's the core of the court's analysis rejecting the sex trafficking claim:

In 2018, Congress passed FOSTA to provide relief for sex trafficking victims and increase the responsibility of online intermediaries by creating new federal crimes and new enforcement mechanisms. One innovation of FOSTA is that it amended section 230 to except sex trafficking claims from section 230 immunity.

When Congress enacted FOSTA, sex trafficking was already a federal crime under section 1591 of the Trafficking Victims Protection Reauthorization Act ("TVPRA"), and victims could pursue civil remedies under section 1595. But courts had held that sex trafficking victims could not seek civil relief against online platforms under section 230, even though they could against other defendants, such as hotels. FOSTA made clear that section 230 does not preclude civil actions by sex trafficking victims under section 1595 or criminal prosecution under section 1591.

Importantly, the TVPRA's criminal provision, section 1591, is different from the civil provision, section 1595. The criminal provision of the TVPRA makes it a crime to "knowingly" benefit from "participation in a venture," which it defines as "knowingly assisting, supporting, or facilitating" a child to engage in a commercial sex act. 18 U.S.C. § 1591(a), (e). The civil provision, on the other hand, can be satisfied by an element of constructive knowledge—that a defendant knowingly benefited from "participation in a venture which that person knew or should have known" was engaged in sex trafficking. 021) (explaining the difference between the criminal provision and the civil provision).

The FOSTA exception to section 230 incorporates both the civil and criminal provisions of the TVPRA. It says that nothing in section 230 "shall be construed to impair or limit any claim in a civil action brought under section 1595 if the conduct underlying the claim constitutes a violation of section 1591 of that statute." The question before us is whether the latter phrase—"if the conduct underlying the claim constitutes a violation of section 1591"—imposes on claims under the FOSTA exception the actual knowledge standard from section 1591, rather than the constructive knowledge standard from section 1595.

We conclude it does…. The phrase "constitutes a violation of section 1591" is not ambiguous. The most straightforward reading is that FOSTA permits civil sex trafficking claims against online platforms only when a platform's conduct violates the criminal TVPRA provision. The criminal TVPRA provision requires that the defendant benefited from participating in a venture that it knew was engaging in sex trafficking. Therefore, the language of the FOSTA exception itself establishes that a civil TVPRA claim can avoid section 230 immunity only when the plaintiff alleges facts that the defendant had actual knowledge, not merely constructive knowledge, of sex trafficking….

When the words of a statute are unambiguous, our analysis ends with the text itself. But for those who find legislative history useful, we note that the drafting history of FOSTA unequivocally supports our conclusion that it incorporates the criminal liability standard from section 1591….

FOSTA's imposition of an actual knowledge standard places a higher burden on sex trafficking victims seeking civil relief against interactive computer services than those seeking relief against other kinds of defendants. But section 230 immunity presumes that we should treat interactive computer services differently than other companies. In any event, if the FOSTA exception to section 230 is too narrow to accomplish its goal, "this is a flaw, or perhaps a feature, that Congress wrote into the statute, and is not one we can rewrite by judicial fiat." …

The second amended complaint alleges Omegle.com "knowingly benefited from participation in what it knew or should have known was a sex trafficking venture in violation of 18 U.S.C. §§ 1591(a)(2) and 1595(a)" and "knowingly benefited from, and/or received value for participation in the venture in which Defendant knew C.H. would be forced to engage in commercial sexual acts while under the age of 18 years old." These accusations state the elements for sex trafficking under section 1595 and may also be construed to state a claim for criminal sex trafficking under 1591. But they are not factual allegations plausibly suggesting that Omegle.com had actual knowledge of C.H. or her interaction with John Doe….

Instead of knowledge, the second amended complaint alleges that Omegle.com was negligent. Omegle.com allegedly knows that predators use its services, which allow them to target children for sexual abuse and exploitation. Nonetheless, Omegle.com allegedly enables individuals to communicate with complete anonymity, does not require age verification or parental consent for minor users, and does not sufficiently protect users' data. These allegations taken as true may sufficiently allege that Omegle.com should have known (i.e., constructive knowledge) that John Doe would use its website to victimize C.H. But the law demands more than constructive knowledge….

Judge Barbara Lagoa dissented as to the child pornography claim:

[T]his Court held in Tilton v. Playboy Entertainment Group, Inc. (11th Cir. 2009) that liability under § 2252A(a) requires a finding that the defendant knowingly possessed sexually explicit material and had knowledge of the age of the subject. But Tilton "recognized that the knowledge element of [§ 2252A(a)] can be proved by demonstrating either actual knowledge or deliberate ignorance." "Knowledge through deliberate indifference occurs where a party acts 'with an awareness of the high probability of the existence of the fact in question.'" This "deliberate indifference" rule exists to prevent a party who has had his "suspicion aroused but then deliberately omits to make further enquiries[ ] because he wishes to remain in ignorance" from skirting liability.

In this case, C.H.'s parents alleged that Omegle knew that its website was used by children and knew that it had been misused by sexual predators to groom and sexually abuse children. C.H.'s parents further alleged that "[t]he use of the Omegle.com website for advertising, creating, posting, and sharing child sex abuse material was so pervasive … that it cannot be said that such conduct was so unforeseen so as to prevent the Omegle defendants from being vicariously liable for such conduct." And they alleged that the myriad "allegations involving Omegle by those who target children for sexual abuse, pornography, and exploitation, the resulting media coverage, and the arrests and convictions of predators using Omegle.com to exploit victims" all indicate "that Omegle has full knowledge of the extent to which its website is used to sexually target, groom, exploit, and abuse children like C.H." According to C.H.'s parents, Omegle actively advertises its site to children but "does nothing to properly verify users' ages or prevent the use of Omegle.com by minors." In my view, these allegations could have been sufficient for the court to find that C.H.'s parents stated a claim under § 2252A(a) on a theory of deliberate ignorance….

Drawing all reasonable inferences in favor of C.H.'s parents here, the district court could have concluded that the complaint does enough to state a plausible claim for relief. Specifically, the plaintiffs alleged (and we accept as true) that Omegle knows that its website is frequented by minors. They also alleged that the use of Omegle.com for child sex abuse material is pervasive, and that Omegle has been contacted by individuals representing exploited children or by law enforcement investigating crimes committed in these cases. A district court could find, based on these allegations, that Omegle was deliberately ignorant to the fact that John Doe's recording of C.H. contained sexually explicit material and deliberately ignorant as to C.H.'s minor status.

The majority reasons that the plaintiffs' allegations are insufficient because the second amended complaint did not allege that Omegle had the ability to access its user's recordings in general or John Doe's recordings of C.H. in particular. I think this asks too much. Not only does a complaint attacked by a Rule 12(b)(6) motion to dismiss not need "detailed factual allegations," but it needs only "enough fact to raise a reasonable expectation that discovery will reveal evidence" of the defendant's liability.

In other words, at the pleading stage, we cannot demand that a plaintiff provide detailed factual matter that may or may not have yet been revealed through the process of discovery. It may be that, ultimately, the plaintiffs in this case would not have been able to prevail on a theory of deliberate indifference. But a "well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely."

Here, the district court could have concluded that C.H.'s parents plausibly alleged knowledge for purposes of the predicate offense. At the very least, I would leave it to the district court to determine whether the plaintiffs' allegations satisfied the knowledge requirement of § 2252A(a)(5)(B) based on a deliberate-indifference standard….

Kimberlee Gunning (Focal PLLC) argued on behalf of Omegle; also on the briefs were Stacia N. Lay and Venkat Balasubramani (FOCAL PLLC), as well as James McGuire and Daniela Abratt (Thomas & LoCicero PLLC).

For more on Omegle, which shut down last years, and the lawsuits against it, see this Lawfare article by Quinta Jurecic and Katherine Pompilio.