Case 3:21-cv-00485-JCS Document 69 Filed 08/19/21 Page 1 of 56
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`JOHN DOE, et al.,
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`Plaintiffs,
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`v.
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`TWITTER, INC.,
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`Defendant.
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`Case No. 21-cv-00485-JCS
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`
`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION TO
`DISMISS FIRST AMENDED
`COMPLAINT
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`Re: Dkt. No. 48
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`I.
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`INTRODUCTION
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`Plaintiffs John Doe #1 and John Doe #2 allege that when they were thirteen years old they
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`were solicited and recruited for sex trafficking and manipulated into providing to a third-party sex
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`trafficker pornographic videos (“the Videos”) of themselves through the social media platform
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`Snapchat. A few years later, when Plaintiffs were still in high school, links to the Videos were
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`posted on Twitter. Plaintiffs allege that when they learned of the posts, they informed law
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`enforcement and urgently requested that Twitter remove them but Twitter initially refused to do
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`so, allowing the posts to remain on Twitter, where they accrued more than 167,000 views and
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`2,223 retweets. According to Plaintiffs, it wasn’t until the mother of one of the boys contacted an
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`agent of the Department of Homeland Security, who initiated contact with Twitter and requested
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`the removal of the material, that Twitter finally took down the posts, nine days later.
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`Plaintiffs assert state and federal claims against Twitter based on its alleged involvement in
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`and/or enabling of sex trafficking and the distribution of the child pornography containing their
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`images. Twitter, however, contends that even after Congress’s enactment of the Fight Online Sex
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`Trafficking Act and Stop Enabling Sex Traffickers Act in 2018, the conduct alleged by Plaintiffs
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`Case 3:21-cv-00485-JCS Document 69 Filed 08/19/21 Page 2 of 56
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`is shielded from liability under Section 230 of the Communications Decency Act (“CDA”). Thus,
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`Twitter brings a Motion to Dismiss First Amended Complaint (“Motion”) seeking dismissal of all
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`of Plaintiffs’ claims on the basis that it is immune from liability under the CDA. In the Motion,
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`Twitter also contends Plaintiffs fail to state viable claims as to many of their claims. A hearing on
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`the Motion was held on August 6, 2021. For the reasons stated below, the Motion is GRANTED
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`in part and DENIED in part.1
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`II.
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`BACKGROUND
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`A. First Amended Complaint
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`Plaintiffs’ First Amended Complaint (“FAC”), which is the operative complaint, contains
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`detailed allegations describing: 1) Twitter’s platform, business model and content moderation
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`policies and practices (FAC ¶¶ 23-51); 2) the ways Twitter allegedly permits and even aids in the
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`distribution of child pornography on its platform and profits from doing so (FAC ¶¶ 52-84); 3)
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`how pornographic content featuring John Doe #1 and John Doe #2 was created and eventually
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`ended up on Twitter’s platform (FAC ¶¶ 85-100); and 4) Twitter’s response to requests that the
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`pornographic photos and videos containing Plaintiffs’ images be removed from Twitter (FAC ¶¶
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`101-132).
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`Based on these allegations, Plaintiffs assert the following claims:
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`1) violation of the Trafficking Victims Protection Reauthorization Act (“TVPRA”), 18
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`U.S.C. §§ 1591(a)(1) and 1595(a) based on the allegation that “Twitter knew, or was in reckless
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`disregard of the fact, that through monetization and providing, obtaining, and maintaining [child
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`sexual abuse material (“CSAM”)] on its platform, Twitter and Twitter users received something of
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`value for the video depicting sex acts of John Doe #1 and John Doe #2 as minors.” FAC ¶¶ 133-
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`143 (Claim One);
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`2) violation of the TVPRA, 18 U.S.C. §§ 1591(a)(2) and 1595(a), based on the allegation
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`that Twitter “knowingly benefited, or should have known that it was benefiting, from assisting,
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`supporting, or facilitating a violation of 1591(a)(1).” FAC ¶¶ 144-155 (Claim Two);
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`1 The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28
`U.S.C. § 636(c).
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`3) violation of the duty to report child sexual abuse material under 18 U.S.C. §§ 2258A
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`and 2258B. FAC ¶¶ 156-163 (Claim Three);
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`4) civil remedies for personal injuries related to sex trafficking and receipt and distribution
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`of child pornography under 18 U.S.C. §§ 1591, 2252A, and 2255, based on the allegations that
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`Twitter was “notified of the CSAM material depicting John Doe #1 and John Doe #2 as minors on
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`its platform and still knowingly received, maintained, and distributed this child pornography after
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`such notice[,]” causing Plaintiffs to suffer “serious harm and personal injury, including, without
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`limitation, physical, psychological, financial, and reputational harm.” FAC ¶¶ 164-176 (Claim
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`Four);
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`5) California products liability based on the allegedly defective design of the Twitter
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`platform, which is “designed so that search terms and hashtags utilized for trading CSAM return
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`suggestions for other search terms and hashtags related to CSAM” and through use of
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`“algorithm(s), API, and other proprietary technology” allows “child predators and sex traffickers
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`to distribute CSAM on a massive scale” while also making it difficult for users to report CSAM
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`and not allowing for immediate blocking of CSAM material once reported pending review. FAC
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`¶¶ 177-190 (Claim Five);
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`6) negligence based on allegations that Twitter had a duty to protect Plaintiffs, had actual
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`knowledge that CSAM containing their images was being disseminated on its platform and failed
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`to promptly remove it once notified. FAC ¶¶ 191-197 (Claim Six);
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`7) gross negligence based on the same theory as Plaintiffs’ negligence claim. FAC ¶¶ 198-
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`203 (Claim Seven);
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`8) negligence per se based on the allegation that Twitter’s conduct violated numerous laws,
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`including 18 U.S.C. §§ 1591 and 1595 (benefiting from a sex trafficking venture), 18 U.S.C. §
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`2258A (failing to report known child sexual abuse material), 18 U.S.C. § 2552A (knowingly
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`distributing child pornography), Cal. Civ. Code § 1708.85 (intentionally distributing non-
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`consensually shared pornography), and Cal. Penal Code § 311.1 (possessing child pornography).
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`FAC ¶¶ 204-26 (Claim Eight);
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`9) negligent infliction of emotional distress. FAC ¶¶ 207-212 (Claim Nine);
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`Case 3:21-cv-00485-JCS Document 69 Filed 08/19/21 Page 4 of 56
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`10) distribution of private sexually explicit materials, in violation of Cal. Civ. Code §
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`1708.85, based on the allegation that “[b]y refusing to remove or block the photographic images
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`and video depicting him after Plaintiff John Doe #1 notified Twitter that both he and John Doe #2
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`were minors, Twitter intentionally distributed on its online platform photographic images and
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`video of the Plaintiffs.” FAC ¶¶ 213-218 (Claim Ten);
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`11) intrusion into private affairs, based on the allegation that “Twitter intentionally
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`intruded into Plaintiffs’ reasonable expectation of privacy by continuing to distribute the
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`photographic images and video depicting them after John Doe #1 notified Twitter that Plaintiffs
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`were minors and the material had been posted on its platform without their consent.” FAC ¶¶ 219-
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`223 (Claim Eleven);
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`12) invasion of privacy under the California Constitution, Article 1, Section 1. FAC ¶¶
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`224-228 (Claim Twelve); and
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`13) violation of California Business and Professions Code § 17200 (“UCL”) based on
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`allegations that “Twitter utilized and exploited Plaintiffs for its own benefit and profit” and
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`“Plaintiffs, to their detriment, reasonably relied upon Twitter’s willful and deceitful conduct and
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`assurances that it effectively moderates and otherwise controls third-party user content on its
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`platforms.” FAC ¶¶ 229-234 (Claim Thirteen).
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`Plaintiffs seek compensatory and punitive damages, injunctive relief, restitution,
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`disgorgement of profits and unjust enrichment and attorneys’ fees and costs.
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`B.
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`Statutory Background
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`1. The CDA
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`The CDA was enacted as part of the Telecommunications Act of 1996. It contains a
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`“Good Samaritan” provision that immunizes interactive computer service (“ICS”) providers from
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`liability for restricting access to certain types of materials or giving users the technical means to
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`restrict access to such materials, providing as follows:
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`(c) Protection for “Good Samaritan” blocking and screening of
`offensive material
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`(1) Treatment of publisher or speaker
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`Case 3:21-cv-00485-JCS Document 69 Filed 08/19/21 Page 5 of 56
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`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.
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`(2) Civil liability
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`No provider or user of an interactive computer service shall
`be held liable on account of—
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`(A) any action voluntarily taken in good faith to restrict access to
`or availability of material that the provider or user considers
`to be obscene, lewd, lascivious, filthy, excessively violent,
`harassing, or otherwise objectionable, whether or not such
`material is constitutionally protected; or
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`(B) any action taken to enable or make available to information
`content providers or others the technical means to restrict
`access to material described in paragraph (1).
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`47 U.S.C. § 230(c).
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`“This grant of immunity dates back to the early days of the internet when concerns first
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`arose about children being able to access online pornography.” Enigma Software Grp. USA, LLC
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`v. Malwarebytes, Inc., 946 F.3d 1040, 1046 (9th Cir. 2019), cert. denied, 141 S. Ct. 13 (2020). At
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`that time, “[p]arents could not program their computers to block online pornography, and this was
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`at least partially due to a combination of trial court decisions in New York that had deterred the
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`creation of online-filtration efforts.” Id. Under the New York cases, “if a provider remained
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`passive and uninvolved in filtering third-party material from its network, the provider could not be
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`held liable for any offensive content it carried from third parties.” Id. (citing Cubby, Inc. v.
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`CompuServe, Inc., 776 F. Supp. 135, 139–43 (S.D.N.Y. 1991)). On the other hand, “once a
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`service provider undertook to filter offensive content from its network, it assumed responsibility
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`for any offensive content it failed to filter, even if it lacked knowledge of the content.” Id. (citing
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`Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710, *5 (N.Y. Sup. Ct. May 24,
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`1995)). “The Stratton Oakmont decision, along with the increasing public concern about
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`pornography on the internet, served as catalysts” for the enactment of the CDA. Id.
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`The Ninth Circuit has interpreted CDA § 230 broadly: so long as an interactive computer
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`service provider is not also an “information content provider,” that is, someone who is
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`“responsible, in whole or in part, for the creation or development of” the offending content, it is
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`immune from liability arising from content created by third parties. Fair Hous. Council of San
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`Case 3:21-cv-00485-JCS Document 69 Filed 08/19/21 Page 6 of 56
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`Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (citing 47 U.S.C.
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`§§ 230(c), (f)). Thus, a defendant is entitled to immunity under the CDA if: 1) it is a “provider or
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`user of an interactive computer service,” 2) the information for which the plaintiff seeks to hold
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`the defendant liable was “information provided by another information content provider,” and 3)
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`the complaint seeks to hold the defendant liable as the “publisher or speaker” of that information.
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`Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014) (citing 47 U.S.C. § 230(c)(1)); see
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`also Pennie v. Twitter, Inc., 281 F. Supp. 3d 874, 890 (N.D. Cal. 2017) (finding that under Section
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`230 Twitter was immune from claims based on theory that third-party content Twitter allowed to
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`be posted on its platform led to plaintiff’s injury because the claim sought to hold Twitter liable as
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`a publisher).2
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`As expressly stated in Section 230, the policies underlying the enactment of that section
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`are:
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`(1) to promote the continued development of the Internet and other
`interactive computer services and other interactive media;
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`(2) to preserve the vibrant and competitive free market that presently
`exists for the Internet and other interactive computer services,
`unfettered by Federal or State regulation;
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`(3) to encourage the development of technologies which maximize
`user control over what information is received by individuals,
`families, and schools who use the Internet and other interactive
`computer services;
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`(4) to remove disincentives for the development and utilization of
`blocking and filtering technologies that empower parents to
`restrict their children's access to objectionable or inappropriate
`online material; and
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`(5) to ensure vigorous enforcement of Federal criminal laws to deter
`and punish trafficking in obscenity, stalking, and harassment by
`means of computer.
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`47 U.S.C. § 230(b).
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`Section 230 expressly states that it has “[n]o effect on criminal law[,]” providing that
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`“[n]othing in this section shall be construed to impair the enforcement of section 223 or 231 of this
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`title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title
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`2 Here, it is undisputed that Twitter is an interactive computer service provider and that the Videos
`were provided by another information content provider.
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`18, or any other Federal criminal statute.” 47 U.S.C. § 230(e)(1). It expressly preempts all state
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`laws that are inconsistent with Section 230’s grant of immunity. 47 U.S.C. § 230(e)(3) (“No cause
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`of action may be brought and no liability may be imposed under any State or local law that is
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`inconsistent with this section.”).
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`2. The TVPRA
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`In 2000, Congress enacted the TVPRA, which criminalized sex trafficking. When it
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`enacted the TVPRA, “Congress declared that the purposes of the [TVPRA] are to ‘combat
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`trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly
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`women and children, to ensure just and effective punishment of traffickers, and to protect their
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`victims.’ ” Ditullio v. Boehm, 662 F.3d 1091, 1094 (9th Cir. 2011) (quoting Pub.L. No. 106–386,
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`§ 102, 114 Stat. 1488 (2000) (codified as amended at 18 U.S.C. § 1589 et seq.)). In 2003, the law
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`was expanded to provide a private right of civil action for victims of sex trafficking, codified at 18
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`U.S.C. § 1595. Id. “The version of § 1595 enacted in 2003 limited the civil remedy to victims of
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`three specific trafficking acts (including sex trafficking of minors), and did not expressly permit
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`recovery against individuals who benefit from participation in a trafficking venture.” Id. n. 1
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`(citing Pub.L. 108–193, § 4(a)(4)(A), 117 Stat. 2878 (2003)). “In the [TVPRA’s] 2008
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`reauthorization, Congress deleted those limitations.” Id. (citing Pub.L. 110–457, Title II, § 221(2),
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`122 Stat. 5067 (2008)).
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`In its current form, the TVPRA makes it a crime to engage in direct sex trafficking or to
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`benefit financially from sex trafficking, providing as follows:
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`(a) Whoever knowingly—
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`(1) in or affecting interstate or foreign commerce, or within the
`special maritime and territorial jurisdiction of the United States,
`recruits, entices, harbors, transports, provides, obtains, advertises,
`maintains, patronizes, or solicits by any means a person; or
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`(2) benefits, financially or by receiving anything of value, from
`participation in a venture which has engaged in an act described
`in violation of paragraph (1),
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`knowing, or, except where the act constituting the violation of
`paragraph (1) is advertising, in reckless disregard of the fact, that
`means of force, threats of force, fraud, coercion described in
`subsection (e)(2), or any combination of such means will be used to
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`cause the person to engage in a commercial sex act, or that the person
`has not attained the age of 18 years and will be caused to engage in a
`commercial sex act, shall be punished as provided in subsection (b).
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`18 U.S.C. § 1591(a). Section 1591(e) further provides that “[in] this section . . . [t]he term
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`‘participation in a venture’ means knowingly assisting, supporting, or facilitating a violation of
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`subsection (a)(1).” 18 U.S.C. § 1591(e)(4).
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`The civil liability provision in its current form provides that “[a]n individual who is a
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`victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever
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`knowingly benefits, financially or by receiving anything of value from participation in a venture
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`which that person knew or should have known has engaged in an act in violation of this chapter)
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`in an appropriate district court of the United States and may recover damages and reasonable
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`attorneys fees.” 18 U.S.C. § 1595(a).
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`3. FOSTA
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`In 2018, the CDA was amended by the Allow States and Victims to Fight Online Sex
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`Trafficking Act of 2017, Pub. L. No. 115-164, 132 Stat. 1253 (2018) (“FOSTA”), which inserted a
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`new provision in CDA § 230 specifically addressing the application of that section in the context
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`of sex trafficking law. See 47 U.S.C. § 230(f)(5). “ ‘Congress passed [FOSTA] to narrow Section
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`230’s scope and provide prosecutors with new tools to combat the sex trafficking of both minors
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`and adults.’ ” J. B. v. G6 Hosp., LLC, No. 19-CV-07848-HSG, 2020 WL 4901196, at *4 (N.D.
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`Cal. Aug. 20, 2020) (quoting Woodhull Freedom Found. v. United States, 948 F.3d 363, 368 (D.C.
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`Cir. 2020)); see also 164 Cong. Rec. S1849-08, 164 Cong. Rec. S1849-08, S1849 (reflecting that
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`FOSTA was enacted in response to an increase in sex trafficking resulting from “the presence of
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`[sex trafficking] organizations online that are using the ruthless efficiency of the internet to sell
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`women and children”). The legislative history reflects that one of the websites of particular
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`concern to Congress was a sex trafficking website called “Backpage,” which knowingly trafficked
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`in young women and children. See 164 Cong. Rec. S1849-08, 164 Cong. Rec. S1849-08, S1854
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`(“Why is this law so important? If I am looking at this through a prosecutor’s lens, now all of the
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`prosecutors in the country can go after anyone who knowingly facilitates sex trafficking online. I
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`am not saying when it is by accident, and I am not saying when it has slipped through and they
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`don’t know it; I am talking about to knowingly facilitate, which is what [B]ackpage was doing.”)
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`(Senator McCaskill).
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`FOSTA’s amendment of the CDA consisted of adding Section 230(e)(5):
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`(5) No effect on sex trafficking law
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`Nothing in this section (other than subsection (c)(2)(A)) shall be
`construed to impair or limit—
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`(A) any claim in a civil action brought under section 1595 of Title 18,
`if the conduct underlying the claim constitutes a violation of
`section 1591 of that title;
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`(B) any charge in a criminal prosecution brought under State law if
`the conduct underlying the charge would constitute a violation of
`section 1591 of Title 18; or
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`(C) any charge in a criminal prosecution brought under State law if
`the conduct underlying the charge would constitute a violation of
`section 2421A of Title 18, and promotion or facilitation of
`prostitution is illegal in the jurisdiction where the defendant's
`promotion or facilitation of prostitution was targeted.
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`47 U.S.C. § 230(e)(5). “ ‘FOSTA narrowed the scope of immunity for interactive computer
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`service providers, by providing that Section 230 has “[n]o effect on sex trafficking law,” and shall
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`not “be construed to impair or limit” civil claims brought under TVPRA Section 1595 or criminal
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`charges brought under state law if the underlying conduct would constitute a violation of TVPRA
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`Sections 1591 or 2421A.’ ” J. B. v. G6 Hosp., LLC, 2020 WL 4901196, at *4 (quoting Woodhull
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`Freedom Found. v. United States, 948 F.3d at 368) (quoting 132 Stat. at 1254).
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`C. Contentions of the Parties
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`1. Motion
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`Twitter argues in the Motion that it is immune under CDA § 230 as to all of Plaintiffs’
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`claims. Motion at 2. According to Twitter, the amendment of Section 230 under FOSTA,
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`permitting sex trafficking victims to pursue civil claims under 18 U.S.C. § 1595 against an
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`interactive computer service provider where the provider violates 18 U.S.C. § 1591, created only a
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`narrow exception to the immunity afforded under Section 230 that was “carefully targeted to
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`remove civil immunity for the few criminal websites that, unlike Twitter here, were deliberately
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`and knowingly assisting and profiting from reprehensible crimes.” Id. Twitter contends,
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`Case 3:21-cv-00485-JCS Document 69 Filed 08/19/21 Page 10 of 56
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`“FOSTA’s language, its legislative history, and the pre-existing case law on Section 1591 all point
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`to the same conclusion: civil claims can only proceed against sex traffickers and those who
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`knowingly benefit from their affirmative participation in a sex trafficking venture.” Id.
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`Twitter argues that here, Plaintiffs have failed to allege facts showing that the exception to
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`immunity created under FOSTA applies because the FAC: 1) “lacks any facts showing that
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`Twitter affirmatively participated in any kind of venture with the Perpetrators, let alone a sex
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`trafficking venture”; 2) “does not allege, as required to establish a violation of Section 1591, any
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`facts establishing that Twitter knew that Plaintiffs were victims of sex trafficking or that the
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`Videos were evidence of this crime”; and 3) does not “allege any connection between the
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`Perpetrators and Twitter or that Twitter received any benefits because of the Videos.” Id. Twitter
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`further asserts that CDA § 230 protects it from liability because “Twitter did remove the Videos
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`and suspend the accounts that had posted them” and it cannot be held liable under “any applicable
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`law” simply because it did not take the videos down immediately. Id.
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`Twitter represents that it “vigorously combats [child sexual exploitation material (“CSE”)]
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`through a combination of methods, including review of user reports and the use of proprietary
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`technology to proactively identify and remove such material” but that “given the sheer volume of
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`Tweets posted every day on Twitter’s platform (hundreds of millions of Tweets posted by over
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`190 million daily users), it is simply not possible for Twitter – or the individuals who enforce its
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`Rules and policies – to find and remove all offending content immediately or accurately in all
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`cases.” Id. at 1. Twitter points to its zero-tolerance policy for child sexual exploitation materials,
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`which is set forth in its Rules – to which users must agree when they create a Twitter account. Id.
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`at 6. According to Twitter, it also “utilizes multiple tools, including reports by the public . . . ,
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`moderators who review reports of abuse and CSE content, innovative technology and algorithms
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`that proactively identify abusive content, and online education and information sharing to combat
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`online abuse.” Id. (citing FAC ¶¶ 42-43, 55-57; Wong Decl., Exs. 1 (news article entitled “Twitter
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`says it’s getting better at detecting abusive tweets without your help”), 2 (a blog post by Twitter
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`entitled “A healthier Twitter: Progress and more to do”)). According to Twitter, in enacting
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`FOSTA, Congress did not intend “for online platforms like Twitter that proactively act against
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`Case 3:21-cv-00485-JCS Document 69 Filed 08/19/21 Page 11 of 56
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`such activity to be sued for their inadvertent failure to remove content.” Id. at 2.
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`The purpose of CDA § 230, according to Twitter, was “to ensure that interactive computer
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`service (‘ICS’) providers would never have to choose ‘between taking responsibility for all
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`messages and deleting no messages at all,’ which presents such providers a ‘grim’ and illusory
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`choice.” Id. at 3 (quoting Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC,
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`521 F.3d 1157, 1162-63 (9th Cir. 2008)). To achieve that purpose, it asserts, Ҥ 230 creates broad
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`immunity for claims against ICS providers based on content created by users: ‘No provider . . . of
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`an interactive computer service shall be treated as the publisher or speaker of any information
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`provided by another information content provider.’ ” Id. (quoting 47 U.S.C. § 230(c)(1)). Twitter
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`contends this provision “bars all causes of action that seek to hold ICS providers like Twitter
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`liable for not removing content created by a third-party.” Id. (citing Igbonwa v. Facebook, Inc.,
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`2018 WL 4907632, at *5-7 (N.D. Cal. Oct. 9, 2018), aff’d, 786 F. App’x 104 (9th Cir. 2019)).
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`Twitter asserts that FOSTA created only a narrow exception to the immunity afforded
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`under CDA § 230, permitting a victim of sex trafficking to bring a civil action under § 1595, but
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`only “ ‘if the conduct underlying the claim constitutes a violation of [S]ection 1591,’ the criminal
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`statute prohibiting sex trafficking.” Id. at 4 (citing 47 U.S.C. § 230(e)(5)(A); Doe v. Kik
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`Interactive, 482 F.Supp.3d 1242, 1251 (S.D. Fla. 2020) (“FOSTA permits civil liability for
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`websites only if the conduct underlying the claim constitutes a violation of section 1591.”)). This
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`limitation is important, it contends, because “Section 1591 has more stringent mens rea and
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`required elements to meet than Section 1595.” Id. Thus, Twitter argues, the FOSTA exception
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`only applies to “openly malicious actors” and does not otherwise change the scope of immunity
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`under CDA § 230. Id. at 5 (citing Kik, 482 F.Supp.3d at 1249-51); see also id. at 3. According
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`to Twitter, this is apparent from the legislative history. Id. (citing 164 Cong. Rec., at S1860-62
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`(statement of Senator Durbin (“[FOSTA] is a narrowly crafted bill that would ensure that Section
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`230 . . . does not provide legal immunity to websites like Backpage that knowingly facilitate sex
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`trafficking”)); id. (statement of Senator Schumer (“Key to my support is my understanding that
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`this legislation would not allow nuisance lawsuits against technology companies.”)).
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`Here, Twitter asserts, it meets all the requirements for establishing immunity under CDA §
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`Case 3:21-cv-00485-JCS Document 69 Filed 08/19/21 Page 12 of 56
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`230, namely, that (1) it is an ICS provider; (2) Plaintiffs’ claims treat Twitter as the publisher or
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`speaker of the content in question; and (3) someone other than Twitter provided or created the
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`content at issue. Id. at 8-11. Twitter argues further that the FAC does not allege facts that would
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`establish that any exemption to CDA § 230 applies, including the FOSTA exception that allows
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`for the imposition of liability where the ICS itself violates Section 1591, either as a “primary
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`violator” or a “secondary participant” that ‘knowingly . . . benefits, financially or by receiving
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`anything of value, from participation in a venture’ with a primary violator.” Id. (quoting 18 U.S.C. §
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`1591(a)). Id. at 11-12.
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`With respect to Plaintiffs’ claim that Twitter was a primary participant in sex trafficking
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`under Section 1591(a)(1), Twitter contends Plaintiffs’ allegations fall short because “[t]o plead a
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`primary violation, a plaintiff must allege that the defendant ‘provide[d], obtain[ed], [and]
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`maintain[ed] . . . a person” knowing that he or she “will be . . . cause[d]” to engage in a
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`commercial sex act.” Id. at 12 (quoting 18 U.S.C. § 1591(a)(1)) (emphasis added by Twitter).
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`Twitter contends “Plaintiffs allege only that ‘Twitter knowingly provided, obtained, and
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`maintained the Videos,’ not Plaintiffs” and therefore they fail to allege a primary violation. Id.
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`(quoting FAC ¶ 141) (emphasis added by Twitter). Twitter also argues that as to Plaintiffs’ claims
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`under both Section 1591(a)(1) and Section 1591(a)(2), those claims fall short for the additional
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`reason that Section 1591 “requires a defendant to know that the victim ‘will in the future [be]
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`cause[d] . . . to engage in prostitution.’ ” Id. at 12 n. 10 (citing United States v. Todd, 627 F.3d
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`329, 334 (9th Cir. 2010)). According to Twitter, “Plaintiffs cannot plead that Twitter had such
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`knowledge as the FAC alleges that Plaintiffs had cut off contact with the Perpetrators before the
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`Videos were posted on Twitter’s platform.” Id. (citing FAC ¶¶ 94-96).
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`Twitter contends Plaintiffs also fail to allege that it was a secondary participant under
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`Section 1591(a)(2). Id. at 12-19. According to Twitter, to establish that it is a secondary
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`participant, Plaintiffs must “plead that Twitter ‘knowingly . . . benefit[ed] . . . from participation in
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`a venture which has engaged in [sex trafficking] in violation of [Section 1591(a)(1)].’ ” Id.
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`(quoting 18 U.S.C. § 1591(a)(2)). It further asserts that Section 1591 was amended by FOSTA to
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`define “[p]articipation in a venture” as “knowingly assisting, supporting, or facilitating” a primary
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`Case 3:21-cv-00485-JCS Document 69 Filed 08/19/21 Page 13 of 56
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`violation. Id. at 12 (quoting 18 U.S.C. § 1591(e)(4)) (emphasis added by Twitter)). Twitter
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`argues that neither of the grounds upon which Plaintiffs rely to establish that Twitter was a
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`secondary participant – “(i) Twitter’s initial failure to find a violation of its policies after
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`reviewing the Video, or (ii) Twitter’s nine-day delay in removing the Videos” – establishes it was
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`a secondary participant for three reasons. Id.
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`“First, Plaintiffs do not allege the existence of any type of venture between Twitter and any
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`party that has a common purpose, much less facts suggesting ‘that [Twitter] actually participat