Applying the TVPRA to Foreign Websites
October 10, 2024
The facts of Doe v. WebGroup Czech Republic are horrific. The complaint alleges that a U.S. citizen, fourteen years old, was filmed being raped, repeatedly, in the United States. Videos of the assaults were uploaded to foreign pornography websites, from which they were then viewed tens of thousands of times in the United States. Are the foreign websites beyond the reach of U.S. law, either because they are foreign or because they are websites?
As previously discussed at TLB, the Ninth Circuit held earlier this year that these foreign websites are subject to personal jurisdiction in U.S. courts because they purposefully directed activities to the United States. On remand, the defendants argued that the claims against them should nevertheless be dismissed, among other reasons, because Section 230 of the Communications Decency Act shields them from liability as interactive computer service providers and because their conduct lies beyond the geographic scope of the Trafficking Victims Protection Reauthorization Act (TVPRA). In a decision on July 24, 2024, Judge Sherilyn Peace Garnett (Central District of California) largely agreed with the defendants.
But Judge Garnett gave the plaintiff a chance to amend her complaint, which she has now done. Defendants again moved to dismiss. The motion has been fully briefed, and a hearing is set for October 16.
The Statutory Framework
Congress has gone to great lengths to provide remedies for victims of child sex trafficking. In the TVPRA, Congress created a civil remedy (Section 1595) for offenses involving forced labor and human trafficking. Among these is child sex trafficking (Section 1591). The TVPRA targets both direct perpetrators and those who benefit. Section 1591 makes it a criminal offense both to cause a person under 18 to engage in a commercial sex act and also to benefit from participation in a venture that does so. Section 1595’s civil remedy similarly extends both to perpetrators and also to those who participate in such ventures.
Separately, Congress provided a civil remedy (Section 2255) for offenses involving child sexual exploitation. Such offenses include knowingly receiving and distributing child pornography (Section 2252 and Section 2252A) and knowingly receiving and distributing child pornography outside the United States intending that it be imported into the United States (Section 2260).
Congress also passed the Allow States to Fight Online Sex Trafficking Act (FOSTA) to create exceptions to the immunity that interactive computer services providers enjoy under Section 230 of the Communications Decency Act. Subsection (e)(5) now provides that Section 230 does not bar “any claim in a civil action brought under section 1595 [the TVPRA’s civil remedy] … if the conduct underlying the claim constitutes a violation of section 1591 [the TVPRA’s sex trafficking provision].”
In her initial decision, Judge Garnett interpreted and applied each of these provisions in ways that favored the foreign websites. But some of those decisions deserve reconsideration.
Website Immunity
With respect to Section 230, the district court held that the websites were not themselves content providers and that the plaintiff had not alleged enough to come within FOSTA’s exception to immunity.
Section 230
Section 230(c)(1) says: “No provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” A website is not immune, however, to the extent that it is itself responsible for the creation or development of content. In Fair Housing Valley Council of San Fernando Valley v. Roommates.com (2008), the Ninth Circuit held that a website may be considered an information content provider when it “materially contributes” to illegal content but not when it simply provides “neutral tools” that others employ.
In this case, the plaintiff argues that the defendants materially contributed to the child sexual abuse material (CSAM) on their websites through (among other things) guidelines that encourage sex trafficking, the sites’ use of VPNs to anonymize web traffic, the development of tags making it easier to find CSAM, and the creation of “thumbnail” pictures from videos, including ones depicting the plaintiff. In its initial decision, the district court considered most of these to be “neutral tools,” available to all videos posted on the defendants’ websites and not just to CSAM. Another district court has read such allegations differently, holding that the development of tags and creation of thumbnails do “materially contribute” to the development of illegal content.
A recent Ninth Circuit decision offers Judge Garnett a chance to reconsider her initial decision. In Calise v. Meta Platforms, Inc. (2024), the Ninth Circuit refocused the Section 230 analysis on whether a plaintiff’s claims arise from a duty of the defendant that is separate from its status as a publisher. Plaintiff argues that the defendants in this case had a duty under the TVPRA not to benefit from participation in a venture that they knew or should have known engaged in sex trafficking.
FOSTA
The district court’s initial decision held that FOSTA’s exception did not apply because the defendants were not alleged to have engaged in sex trafficking themselves. As mentioned above, FOSTA creates an exception to Section 230 immunity for “any claim in a civil action brought under section 1595 … if the conduct underlying the claim constitutes a violation of section 1591.” The critical question is whether “the conduct underlying the claim” must be the defendant’s own conduct even in a civil action against a beneficiary under Section 1595.
In Does 1-6 v. Reddit, Inc. (2022), the Ninth Circuit answered yes to this question. For FOSTA’s exceptions for criminal liability in Sections 230(e)(5)(B) and (C), this makes sense. It is hard to see how a criminal prosecution would not involve the defendant’s own conduct. But the Ninth Circuit went wrong in applying the same approach to FOSTA’s exception for civil liability in Section 230(e)(5)(A). Section 1595, to which this exception expressly refers, extends civil liability not only to direct perpetrators but also to others who benefit from participation in a venture with them. By reading “conduct underlying the claim” to refer to a civil defendant’s own conduct, the Ninth Circuit effectively held that FOSTA’s exception applies only to suits against perpetrators and not to suits against others who benefit. If that had indeed been Congress’s intent, it would have been easy for FOSTA to say so explicitly. And it seems unlikely that Congress would smuggle such a limitation into FOSTA with the ambiguous word “conduct.”
The district court in this case was, of course, bound by Reddit and held that the first complaint did not sufficiently allege that the defendants violated Section 1591. But Judge Garnett allowed the plaintiff to amend her complaint to address the Ninth Circuit’s decision. In her current briefing, plaintiff points out that, in contrast to Reddit, the primary use of defendants’ website is pornography. Plaintiff has alleged that defendants used tags including “toddler,” “jailbait,” and “not 18”; shared revenue with CSAM providers; and recommended illegal content to users. These allegations may well establish that defendants violated Section 1591(a)(2) by benefiting from participation in a venture “knowing” or “or in reckless disregard of the fact” that they were promoting videos of minors.
Extraterritoriality
Congress expressly addressed the geographic scope of the TVPRA in Section 1596(a), which reads:
In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under section 1581, 1583, 1584, 1589, 1590, or 1591 if—
(1) an alleged offender is a national of the United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)); or
(2) an alleged offender is present in the United States, irrespective of the nationality of the alleged offender.
In its initial decision, the district court reasoned that because none of the defendants are U.S. nationals, permanent residents, or present in the United States, the TVPRA did not apply. Plaintiff has now argued that defendants may be “present” in the United States without being physically present.
But there is a simpler answer to this question, and one that Judge Garnett did not consider in her initial decision. Defendants have been sued under Section 1595 as persons who benefited from participation in a venture that they knew or should have known engaged in child sex trafficking. (The “venture” requirement, discussed here, should be easy to establish since the websites enter agreements and share revenues with persons who upload videos to their sites.) For such claims, the “alleged offenders” to which Section 1596 refers are not the defendants themselves but rather the persons who raped and filmed the plaintiff. Those persons were clearly “present in the United States” for the purposes of Section 1596.
More fundamentally, it is not clear that this case even involves an extraterritorial application of Sections 1591 and 1595. The underlying sex trafficking of plaintiff occurred in the United States. The defendants also benefited from the sex trafficking here. The Ninth Circuit has already held for purposes of personal jurisdiction that defendants expressly aimed their websites at the United States and profited from the U.S. market. The fact that defendants are physically located abroad does not necessarily make the application of U.S. law extraterritorial. Under the Supreme Court’s current approach, “[i]f the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad.” That seems to be true here.
The district court did not address the geographic scope of Sections 2252, 2252A, and 2260, each of which deals with the sexual exploitation of children, because it concluded that the plaintiff had failed to allege the requisite knowledge. Although the presumption against extraterritoriality might limit the reach of Section 2252 and 2252A in this case, Section 2260 expressly applies to persons “outside the United States” who distribute sexually explicit depictions of minors with the intent to import those depictions into the United States. Section 2260 fits this case like a glove. Section 2255 creates a civil remedy for anyone injured as a result of such a violation, and there is no question of extraterritoriality for that provision because the plaintiff was injured in the United States.
Conclusion
The defendants in this case should not be beyond the reach of U.S. law—neither because they are foreign nor because they are websites. In this case, the trafficking occurred in the United States and the defendants benefited from it here. To the extent it is necessary to invoke Section 1596’s provision on extraterritorial jurisdiction, its requirements are met because the plaintiff’s traffickers were present in the United States.
Section 230 should not immunize the foreign websites for two reasons. First, plaintiff has alleged that defendants violated a duty—not to benefit from participation in a venture engaged in sex trafficking—that is separate from their status as a publisher. Second, FOSTA creates an exception to Section 230 immunity for claims under Section 1595 if the conduct underlying the claim is a violation of Section 1591. Plaintiff has alleged facts that distinguish this case from the Ninth Circuit’s decision in Reddit.
As noted above, Congress has repeatedly—and with bipartisan support—taken actions to ensure that victims of child sex trafficking have civil remedies. The ways in which these efforts fit together are complex, as any reader who has made it this far will surely appreciate. But it seems unthinkable that Congress meant to deny a civil remedy to a minor who was raped and filmed in the United States, the videos of which were distributed in the United States to the defendants’ financial benefit, simply because the websites are operated from abroad.