Amicus Curiae Brief — Reynaldo Gonzalez, et al., Petitioners v. Google LLC

No. 21-1333

In the

Supreme Court of the United States

REYNALDO GONZALEZ, et al.,

Petitioners,

v.

GOOGLE LLC,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF THE NATIONAL CENTER ON

SEXUAL EXPLOITATION, THE NATIONAL

TRAFFICKING SHELTERED ALLIANCE,

AND RAINN, AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

Lisa D. Haba

A dam A. Haba

Maria E. Bryant

The Haba Law Firm, P.A.

1220 Commerce Park Dr.,

Suite 207

Longwood, FL 32779

(844) 422-2529

Peter A. Gentala

Counsel of Record

Benjamin W. Bull

Danielle Bianculli Pinter

Christen M. Price

National Center on Sexual

Exploitation

1201 F. St., NW, Suite 200

Washington, DC 20004

(202) 393-7245

pgentala@ncoselaw.org

Counsel for Amici Curiae

316761

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . iv

INTEREST OF AMICI . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

Under the Pla in Tex t , §2 30(c)(1) is

Not a Grant of Immunity but Rather a

Prohibition Against Defining an Interactive

Computer Service (ICS) as a Publisher

of Third-Party Content for the Purposes

of Establishing Liability, and §230(c)(2)

Provides Immunity for Certain Actions

Taken by an ICS in Good Faith to Restrict

Offensive or Harmful Content . . . . . . . . . . . . . . . 6

A. Section 230(c)(1) is a Definitional

P r o v i s i o n , No t a n I m m u n i t y

Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. Section 230(c)(1)’s Publisher Definition

Only Limits Liability for ICSs for Claims

Which Seek to Hold an ICS Liable for

Making Third-Party Information

Available to the Public, but it Does Not

Protect Against Any Other Claims

Involving Third-Party Content . . . . . . . . . 10

ii

Table of Contents

Page

C. By contrast, Subsection 230(c)(2)

Immunizes an ICS’s Good Faith

Act ions t o Remove Ha r m f u l or

Offensive Content . . . . . . . . . . . . . . . . . . . . . 12

II. Courts Have Incorrectly Interpreted

§230(C)(1) As a Broad Immunity Provision,

In Defiance of The Plain Language, Thereby

Expanding Protections For ICSs To

Include Even Their Own Knowing and

Intentional Wrongful Conduct . . . . . . . . . . . . . . 14

A. Lower Cour t Inter pretations of

§230 have Incorrectly Interpreted

a nd Ex pa nde d t he Me a n i ng of

“Publisher” Under §230(c)(1) and

Ignored §230(c)(2) Altogether . . . . . . . . . . . 14

B. The Ninth Circuit in Gonzalez v.

Googl e Incor rect ly Int er pret ed

§2 30(c)(1) as a Broad Immunity

Provision and Incorrectly Held it

Immunized Google’s Own Knowing

and Intentional Conduct Through

its Recommendation Algorithms . . . . . . . . 16

III. The Courts’ Misinterpretation of §230(c)(1)

has Disregarded the Statute’s Stated Child

Protection Purpose, Leading to Children

Suffering Harm without Recourse . . . . . . . . . . 18

iii

Table of Contents

Page

A. The Stated Purposes of CDA 230

Include Protecting Children

from Harmful Content . . . . . . . . . . . . . . . . 18

B. The Courts’ Expanded Interpretation

of §230(c)(1) has Led to Harmful

and Unjust Results for Survivors . . . . . . . . 21

1.

The Misinterpretation of §230(c)

(1) has Improperly Immunized

We b s i t e s t h a t K n o w i n g l y

Violat e Laws A ga i nst Ch i ld

Pornography . . . . . . . . . . . . . . . . . . . . . 21

2. The Misinterpretation of §230(c)

(1) has Immunized Websites that

Knowingly Violate Laws Against

Sex Trafficking . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Almendarez-Torres v. United States,

523 U.S. 224 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Barnes v. Yahoo!, Inc.,

570 F.3d 1096 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . 16

Bhd. Of R.R. Trainmen v. Balt. & Ohio R.R.,

331 U.S. 519 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Carafano v. Metrosplash.com, Inc.,

339 F.3d 1119 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . 24

Chi. Lawyers’ Comm. for Civil Rights Under

Law, Inc. v. Craigslist, Inc.,

519 F.3d 666 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . 7

City of Chicago, Ill. v. StubHub!, Inc.,

624 F.3d 363 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 7

Doe #1 v. MG Freesites, LTD,

7:21-CV-00220- LSC, 2022 WL 407147

(N.D. Ala. Feb. 9, 2022) . . . . . . . . . . . . . . . . . . . . . . . . 9

Doe v. Am. Online, Inc.,

783 So.2d 1010 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . 21

Doe v. Bates,

No. 5:05-CV-91-DF-CMC, 2006 WL 3813758

(E.D. Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

v

Cited Authorities

Page

Doe v. GTE Corp.,

347 F.3d 655 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . 7, 13

Doe v. Kik Interactive, Inc.,

482 F. Supp. 3d 1242 (S.D.Fla. 2020) . . . . . . . . . . . . 29

Doe v. Mindgeek USA Inc.,

574 F. Supp. 3d 760 (C.D. Cal. 2021) . . . . . . . . . . . . . 30

Doe v. MySpace, Inc.,

528 F.3d 413 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . . . 29

Does 1-6 v. Reddit, Inc.,

51 F.4th 1137 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 3

Fair Hous. Council of San Fernando Valley v.

Roommates.com, LLC,

521 F. 3d 1157 (2008) . . . . . . . . . . . . . . . . . . . . . 9, 12, 13

Fleites v. MindGeek S.A.R.L.,

No. CV2104920CJCADSX, 2022 WL 4456077

(C.D. Cal. July 29, 2022) . . . . . . . . . . . . . . . . . . . . . . . 30

G.G. v. Salesforce.com, Inc.,

No. 20-CV-02335, 2022 WL 1541408

(N.D.Ill. May 16, 2022) . . . . . . . . . . . . . . . . . . . . . . . . 30

Gonzalez v. Google LLC,

2 F.4th 871 (9th Cir. 2021), cert. granted,

No. 21-1333, 2022 WL 4651229

(U.S. Oct. 3, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 24

vi

Cited Authorities

Page

Henderson v. Source for Pub. Data, L.P.,

53 F.4th 110 (4th Cir. 2022) . . . . . . . . . . . . . . . . . . . . .12

In re Radway,

20 F. Cas. 154 (E.D. Va. 1877) . . . . . . . . . . . . . . . . . . . 9

J.S. v. Vill. Voice Media Holdings, L.L.C.,

184 Wash. 2d 95, 359 P.3d 714 (2015) . . . . . . . . . . . 7, 9

Jane Doe No 1 v. Backpage.com, LLC,

817 F.3d 12 (1st Cir. 2016) . . . . . . . . . . . . . . . . 27, 28, 29

John Doe, et al. v. Twitter, Inc.,

555 F.Supp.3d 889 (N.D. Cal. 2021), appeal

a n d c r oss a p p e a l d o c k e t e d , No s . 2 2 15103 and 22-15104 (9th Cir. 2022) . . . . . . . . . . . . . . . 3

Loughrin v. United States,

573 U.S. 351 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

M.A. ex rel. P.K. v.

Vill. Voice Media Holdings, LLC,

809 F. Supp. 2d 1041 (E.D. Mo. 2011) . . . . . . . . . 24, 27

M.H. v. Omegle.com, LLC,

No. 8:21- CV- 814 - V MC -TGW, 2 02 2 W L

93575 (M.D. Fla. Jan. 10, 2022), appeal

docketed, No. 22-10338 (11th Cir. 2022) . . . . . . . . 3, 30

vii

Cited Authorities

Page

Mid-Continent Cas. Co. v.

Kipp Flores Architects, L.L.C.,

602 Fed. Appx. 985 (5th Cir. 2015) . . . . . . . . . . . . . . 10

N. L. R. B. v. Drivers, Chauffeurs, Helpers, Loc.

Union No. 639,

362 U.S. 274 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

New York v. Ferber,

458 U.S. 747 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Smith v. United States,

508 U.S. 223 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Stratton Oakmont, Inc. v. Prodigy Servs. Co.,

1995 WL 323710 (Sup. Ct. N.Y. Cnty.

May 24, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Williams v. Taylor,

529 U.S. 362 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Zeran v. America Online, Inc.,

129 F. 3d 327 (4th Cir. 1997) . . . . . . . . . . . . . . . . passim

Statutes

18 U.S.C. § 1591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

18 U.S.C. § 1595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

18 U.S.C. § 2252A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

viii

Cited Authorities

Page

18 U.S.C. § 2255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 23

22 U.S.C. § 7101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

22 U.S.C. § 7101(b)(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

47 U.S.C. § 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6

47 U.S.C. § 230(a-b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

47 U.S.C. § 230(b)(1-2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

47 U.S.C. § 230(b)(3-5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

47 U.S.C. § 230(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . passim

47 U.S.C. § 230(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . passim

Congressional Acts

A llow Stat es and Victi ms to Fight

O n l i n e T r a f f i c k i n g a c t o f 2 0 17,

Pub. L. No. 115-164 (Apr. 11, 2018) . . . . . . . . . . . . 5, 26

The Telecommunications Act of 1996, Pub. L.

104–104, 3 February 8, 1996, 110 Stat 56 . . . . . . . 9, 19

Trafficking Victims Protection Act of 2000,

Pub. L. No. 106-386, 114 Stat. 1466 . . . . . . . . . . . . . 26

ix

Cited Authorities

Page

Trafficking Victims Protection

Reauthorization Act of 2003, Pub. L. No.

108-193, § 4(a)(4)(A), 117 Stat. 2875 . . . . . . . . . . . . . . 27

Other Authorities

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts, § 2 (2012) 8, 20, 28

Black’s Law Dictionary (11th ed. 2019) . . . . . . . . . . . . . . 9

Danielle Keats Citron and Benjamin Wittes,

The Inter net Will Not Break: Denying

B a d S a m a r i t a n s § 2 3 0 Im m u n i t y ,

86 Fordham L. Rev. 401 (2017) at https://

ir.lawnet.fordham.edu/flr/vol86/iss2/3. . . . . . . . . 13, 15

Gr egor y M . D ick i n son , An In t e r p r e tive

Framework for Narrower Immunity Under

§230 of the Communications Decency Act,

33 Harv. J.L. & Pub. Pol’y 863 (2010) . . . . . . . . . . . . 14

H.R. Rep. No. 104-458 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

H.R. Rep. No. 115-572 (2018) . . . . . . . . . . . . . . . . . . . . . 28

Joseph Story, Commentaries on the Constitution

of the United States, § 459 (2d ed. 1858) . . . . . . . . . 28

x

Cited Authorities

Page

Mer r iam-Webster.com Dictionary, https://

www.merriam-webster.com/. . . . . . . . . . . . . . . . . . 8, 10

Michael H. Keller and Gabriel J.X. Dance,

The Internet Is Overrun With Images of

Child Sexual Abuse. What Went Wrong?

N.Y. Times (Sept. 29, 2019), https:// www.

ny ti mes.com /i nt eractive / 2 019/0 9/ 2 8 /us /

child-sex-abuse.html . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

S. Rep. No. 115-199 (2018) . . . . . . . . . . . . . . . . . . . . . . . . 28

U.S. Dep’t of Justice, Child Pornography (May

28, 2020), https://www.justice.gov/criminalceos/child-pornography (May 28, 2020) . . . . . . . . . . . 2

1

INTEREST OF AMICI

Amici are organizations dedicated to serving survivors

of sexual abuse and exploitation.1

The National Center on Sex ual Exploitation

(“NCOSE”) is a nonprofit organization, founded in 1962,

that combats sexual exploitation and abuse by advocating

in state and federal courts for survivors, engaging in

corporate advocacy to encourage companies to adopt

responsible and safe practices, and advocating for

legislative change that protects survivors and promotes

human dignity.

The National Trafficking Sheltered Alliance (“NTSA”)

is a network of service providers committed to enhancing

services and increasing access to care for survivors of

human trafficking and sexual exploitation. NTSA provides

a collaborative community and extensive resources to

its over 100 member organizations and accredits longterm residential programs that meet NTSA’s Essential

Standards of Care.

RAINN is the nation’s largest anti-sexual violence

organization, whose purpose is to provide services to

victims of sexual violence and advocate for improvements

to the justice system’s response to sexual violence.

RAINN founded and operates the National Sexual Assault

Hotline, and in its more than 25 years of operation has

1. No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amici curiae, their members, or their counsel

made a monetary contribution to its preparation or submission.

The parties have consented to the filing of this brief.

2

helped more than 4 million survivors of sexual assault and

their loved ones. RAINN is a leader in public education

on sexual violence, provides consulting services to

various industries on best practices for prevention of and

response to sexual assault and harassment, and advocates

on the state and federal levels to improve legislation on

sexual violence.

Amici write to highlight the harmful impact the broad

interpretation of Section 230(c)(1) has had on survivors

of sexual abuse and exploitation and to encourage the

Court to restore an interpretation that gives effect to the

provision’s plain language as well as Congress’s original

intent to protect children from harmful online content.

SUMMARY OF THE ARGUMENT

Today, the Internet is the primary location for the

sexual exploitation of children. Predators from around the

world can reach into homes and abuse children they never

could have accessed pre-internet. Child pornography—or

child sex abuse material (“CSAM”)2 —which used to have

reports in the hundreds, has become an epidemic with

reports in the tens of millions each year. 3 It did not have

2. This brief refers to child pornography as child sexual

abuse material (CSAM) to more accurately reflect that its creation

necessarily involves the sexual abuse and exploitation of children.

See generally, U.S. Dep’t of Justice, Child Pornography (May 28,

2020), available at https://www.justice.gov/criminal-ceos/childpornography (noting that the statutory term “fails to describe

the true horror that is faced by countless children every year.”)

3. See Michael H. Keller and Gabriel J.X. Dance, The

Internet Is Overrun With Images of Child Sexual Abuse. What

Went Wrong? N.Y. Times (Sept. 29, 2019) available at https:// www.

nytimes.com/interactive/2019/09/28/us/child-sex-abuse.html.

3

to be this way. Criminals, and criminal enterprises, have

flocked online where they can enjoy near total anonymity.

The internet is their base of operations because the

technology platforms they use as tools in their predation

protect them and profit off them brazenly as they enjoy

near total immunity for anything that happens on their

platforms.4 This is the result of an interpretation many

courts have given Section 230 of the Communications

Decency Act—a law passed to incentivize websites to take

proactive action to prevent exactly this type of activity.

Instead, large sections of the technology industry enjoy

unprecedented immunity, even against allegations of

knowing possession and distribution of CSAM. 5

This inverts what Congress sought to accomplish when

it adopted the Communications Decency Act. Congress

sought to encourage internet companies to be “Good

Samaritans”—good corporate citizens that work with

families to address the dangers of harmful content, rather

than to standby, taking no action—or worse, facilitate

sexual abuse and exploitation at scale. At the dawn of

the internet, Congress passed §230 in a modest attempt

to address a state-law defamation case, which it feared

would incentivize websites to take a “do nothing” approach

to moderation. That effort has been misconstrued to be

a near-impenetrable immunity causing the very harm

Congress sought to prevent.

4. See, e.g., M.H. v. Omegle.com, LLC, No. 8:21-CV-814VMC-TGW, 2022 WL 93575 (M.D. Fla. Jan. 10, 2022), appeal

docketed, No. 22-10338 (11th Cir. 2022).

5. See, e.g., John Doe, et al. v. Twitter, Inc., 555 F.Supp.3d

889 (N.D. Cal. 2021), appeal and cross appeal docketed, Nos. 2215103 and 22-15104 (9th Cir. 2022); Does 1-6 v. Reddit, Inc., 51

F.4th 1137 (9th Cir. 2022).

4

By its plain language, §230 accomplishes two things.

First, §230(c)(1) provides a specific definition for the type

of legal result that it sought to preclude: a website provider

or user being “treated as” the “publisher or speaker” of

information provided by a third party. Second, §230(c)

(2)—which is entitled “civil liability”—limits liability for

specific actions “voluntarily taken in good faith” by an

internet provider “to restrict access to or availability of

[objectionable] material. . . .” Beginning with the Fourth

Circuit in 1997, courts have misinterpreted §230(c)(1)

to create blanket immunity from suit for any situation

involving “traditional editorial functions.” This broad

category involves any action (or inaction) by an internet

company regarding third-party content, regardless of how

irresponsible, harmful, or dangerous that content may be.

This approach mistakenly looks to whether the internet

company functions as a “publisher.” Under this theory of

immunity, many courts have read §230(c)(1) so broadly

that it swallows subsection (c)(2), making it superfluous.

That is why this case, and most other cases, have been

dismissed on subsection (c)(1) alone. The actual text of

subsection (c)(1), however, only applies to legal scenarios

that treat an internet company as “the publisher or

speaker” of someone else’s information. This makes sense

given that Congress was responding to a case concerning

defamation.

The broad-immunity interpretation is also heavily

premised upon a myopic reading of the purpose of §230.

In enacted findings, Congress noted the importance of

both fostering a vibrant, free internet and making sure

that the internet was safe for children. 47 U.S.C. §230(ab). Moreover, Congress’s driving concern for the safety

of children is clear from the rest of the CDA. Yet court

5

decisions have focused almost exclusively on the purpose

of internet freedom, devastating internet safety.

The broad-immunity interpretation of §230 has

vitiated access to justice for CSAM survivors. Several

cases hold that internet companies are immune even when

they fail to remove child pornography that they know is

present on their platform, concluding that such a decision

falls within a “traditional publishing function.” As a result

of these decisions, internet companies have a de facto

immunity for knowing violations of federal law concerning

CSAM. This is the opposite of what Congress intended.

Congress’s efforts to combat sex trafficking have

also been thwarted by the misinterpretation of §230.

Congress enacted comprehensive restrictions on human

trafficking. Congress followed up by giving survivors of

sex trafficking a civil cause of action against those who

either directly participated in their trafficking, or those

that benefited from it. See 18 U.S.C. §§ 1591, 1595, and

2255. In 2016, the First Circuit held that the website

Backpage.com was immune under §230(c)(1) for claims

that it knowingly facilitated the trafficking of three

girls. Congress responded to this decision by saying that

§230 “was never intended to provide legal protection to

websites that . . . facilitate traffickers in advertising the

sale of unlawful sex acts” and amended §230 itself.6 Yet,

even after this instruction from Congress, courts have

read the amendment to §230 for sex-trafficking survivors

narrowly and dismissed their claims based on the broadimmunity interpretation.

6. Allow States and Victims to Fight Online Trafficking act

of 2017, Pub. L. No. 115-164 §§ 2, 4 (Apr. 11, 2018).

6

When Congress singled-out claims that “treat”

an internet company “as the publisher or speaker” of

someone else’s information, it focused with precision

on claims where knowledge was unfairly imputed to an

intermediary, who would have no reasonable chance to

detect or prevent the harm of publication. Courts have

turned this into an immunity for all third-party content,

even when an internet company knows of its harmful or

unlawful nature. This Court should reverse the decision

below and restore the original balance that was codified

by Congress.

ARGUMENT

The courts have exceeded §230’s plain text, taking

a rule designed to protect an emerging industry from

crippling liability and have allowed it to protect a now

powerful industry from ordinary liability. Amici argue

that I) §230(c)(1) is not an immunity provision, but II)

courts have wrongly treated it as one, and III) this has led

to a massive expansion of sexual abuse and exploitation

on the internet.

I.

Under the Plain Text, §230(c)(1) is Not a Grant

of Immunity but Rather a Prohibition Against

Defining an Interactive Computer Service (ICS)

as a Publisher of Third-Party Content for the

Purposes of Establishing Liability, and §230(c)

(2) Provides Immunity for Certain Actions Taken

by an ICS in Good Faith to Restrict Offensive or

Harmful Content.

The plain text of §230 of the Communications

Decency Act (“CDA 230” or “§230”) does not immunize a

7

technology company from liability for their own knowing

and intentional acts, such as enabling and profiting from

sexual exploitation (or terrorist activity) that they know

is taking place on their platform. Instead, a plain text

interpretation shows that first, §230(c)(1) is a definitional

provision which prohibits an ICS from being defined or

treated as the legal equivalent of the publisher of thirdparty content. And second, that §230(c)(2) is the statute’s

focused immunity provision, which only protects ICSs’

“Good Samaritan” acts to restrict harmful content.

A.

Section 230(c)(1) is a Definitional Provision,

Not an Immunity Provision.

Section 230 (c)(1)’s plain language is that of a

definitional or instructional provision.7 Indeed, it “does

not include the term or any synonym of ‘immunity,’” J.S.

v. Vill. Voice Media Holdings, L.L.C., 184 Wash. 2d 95,

104, 359 P.3d 714, 718 (2015) (Wiggins, J. concurring),

and it “does not create an ‘immunity’ of any kind.” City of

Chicago, Ill. v. StubHub!, Inc., 624 F.3d 363, 366 (7th Cir.

2010) (citing Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir.

2003)). It merely “limits who may be called the publisher

of information that appears online”. StubHub!, Inc., 624

F. 3d at 366.

Properly understood, Subsection (c)(1) forbids treating

two distinct categories as the same. It instructs: “No

provider or user of an interactive computer service shall

7. See Chi. Lawyers’ Comm. for Civil Rights Under Law,

Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008) (“Why not

read § 230(c)(1) as a definitional clause rather than as an immunity

from liability, and thus harmonize the text with the caption?”).

8

be treated as the publisher or speaker of any information

provided by another information content provider.” 47

U.S.C.A. § 230(c)(1). From its first word, the provision

defines through a prohibition. The action that is prohibited

is the verb phrase “treating as.”8

The word “treat” or verb-phrase “treat as” is not

defined in the statute, so we look to its ordinary meaning.

See Smith v. United States, 508 U.S. 223 (1993) (“When a

word is not defined by statute, we normally construe it in

accord with its ordinary or natural meaning.”). Webster’s

Dictionary defines “treat” as, “to regard and deal within a

specified manner—usually used with as.”9 This statement

is defining the manner in which “providers or users” of

ICS’s should be dealt with, which is: not as publishers

or speakers of third-party content. In other words,

“providers or users” of an ICS do not meet the definition

of “publisher or speaker” of information provided by a

third party.

A similar use of “treat as” appears elsewhere in

the Telecommunications Act of 1996 (which includes the

8. The fact that treatment is the focus of the provision is

reinforced by its heading “Treatment of publisher or speaker.”

See Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998)

(“We also note that ‘the title of a statute and the heading of a

section’ are ‘tools available for the resolution of a doubt’ about the

meaning of a statute.”) (quoting Bhd. Of R.R. Trainmen v. Balt.

& Ohio R.R., 331 U.S. 519, 528–29 (1947)); see also Antonin Scalia

& Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts, § 35 at 221 (2012) (“The title and headings are permissible

indicators of meaning.”).

9. “Treat,” Merriam-Webster.com Dictionary, https://www.

merriam-webster.com/dictionary/treat (last visited Nov. 29, 2022).

9

CDA) in this same definitional way. In the definitions

section, under “telecommunications carrier” the statute

says, “A telecommunications carrier shall be treated as

a common carrier under this Act only to the extent that

it is engaged in providing telecommunications services

. . .” The Telecommunications Act of 1996, Pub. L. 104–104,

3 February 8, 1996, 110 Stat 56. (emphasis added). In

both these provisions from the same Act, Congress has

defined when one legal status can be considered the same

as another.

Therefore, subsection (c)(1) forbids drawing a legal

correlation such as a quasi-relationship between two

categories.10 See e.g., In re Radway, 20 F. Cas. 154,

162–63 (E.D. Va. 1877) (describing “quasi ex delicto” as

“what the law chooses to treat as a tort.”). Through its

instruction, subsection (c)(1) lays out who can be treated as

a publisher or speaker of content online and who cannot.11

“In other words, subsection (c)(1) is neither an immunity

nor a defense; it is a prohibition against considering the

provider as a publisher or speaker of content provided by

another.” J.S., 184 Wash. at 107.

10. The “quasi” label “points out that [different] conceptions

are sufficiently similar for one to be classed as the equal of the

other.”). “Quasi,” Black’s Law Dictionary (11th ed. 2019) (quoting

74 C.J.S. Quasi, at 2 (1951)).

11. Additionally, §(c)(1) does not apply if the ICS itself has

developed or created the content at issue. See Doe #1 v. MG

Freesites, LTD, 7:21-CV-00220-LSC, 2022 WL 407147, at *22 (N.D.

Ala. Feb. 9, 2022); see also Fair Hous. Council of San Fernando

Valley v. Roommates.com, LLC, 521 F. 3d 1157, 1163 (2008).

10

B. Section 230(c)(1)’s Publisher Definition Only

Limits Liability for ICSs for Claims Which

Seek to Hold an ICS Liable for Making ThirdParty Information Available to the Public, but

it Does Not Protect Against Any Other Claims

Involving Third-Party Content.

Subsection (c)(1) is a definitional provision, only

limiting liability for claims that seek to define the ICS

as “the publisher” or “the “the speaker” of third-party

content – understanding “publisher” in the ordinary sense

as “one who makes information available to the public.” An

ICS can fall outside of the publisher role depending on its

own conduct. Put another way, §230(c)(1) only precludes

liability where liability depends solely on holding the ICS

responsible for the initial publication; where liability

attaches at the time the information is made available to

the public. It does not protect an ICS that becomes aware

of harmful content and chooses to do nothing, or worse,

makes use of it for profit.

Webster’s Dictionary defines the word “publish”

as, “to make generally known,” or “to disseminate to

the public.”12 And a “publisher” is “one that publishes

13

something.” See Mid-Continent Cas. Co. v. Kipp Flores

Architects, L.L.C., 602 Fed. Appx. 985, 993 (5th Cir. 2015)

(“ . . .publish” is much more comprehensively defined as “to

12. “Publish,” Merriam-Webster.com Dictionary, MerriamWebster, https://www.merriam-webster.com/dictionary/publish.

(last visited Nov. 16, 2022).

13. “Publisher,” Merriam-Webster.com Dictionary,

Merriam-Webster, https://www.merriam-webster.com/

dictionary/ publisher. (last visited Nov. 16, 2022).

11

make public or generally known” or “to make generally

accessible or available for acceptance or use (a work of

art, information, etc.); to present to or before the public.”).

This is particularly relevant given that the statute arose

in the context of defamation law.

For defamation claims, publisher status can determine

liability. For example, in Stratton Oakmont v. Prodigy,

which influenced and was specifically overruled by §230,

a state-court allowed claims for libel against an internet

company for libelous statements posted on its computer

bulletin board by a third-party. Stratton Oakmont, Inc.

v. Prodigy Servs. Co. (“Prodigy”), 1995 WL 323710 (Sup.

Ct. N.Y. Cnty. May 24, 1995). The court’s analysis focused

on whether the bulletin-board service was a “publisher” of

the third-party statements thereby making it per se liable

for them. Id. at *3 (“A finding that [Prodigy] is a publisher

is the first hurdle for Plaintiffs to overcome in pursuit

of their defamation claims, because one who repeats or

otherwise republishes a libel is subject to liability as if he

had originally published it.”) (emphasis added). Congress

found this per se standard of liability unworkable and

rejected it in the online context. Accordingly, it crafted

§230(c)(1) to preclude per se liability, based solely on

treating an ICS like the initial publisher of content: that

is, the one who made it available to the public.14

Because §230(c)(1) is not an immunity provision, it

does not preclude any claims related to an ICS’s own

14. See H.R. Rep. No. 104-458 at 194 (“One of the specific

purposes of this section is to overrule PRODIGY and any other

similar decisions which have treated such providers and users as

publishers or speakers of content that is not their own because

they have restricted access to objectionable material.”).

12

knowing and intentional acts, even if third-party content

is involved. It merely prevents claims which—like the

defamation claim in Prodigy—seek to treat an ICS

wholly responsible for a third-party’s initial publication

of allegedly harmful content. See Henderson v. Source for

Pub. Data, L.P., 53 F.4th 110, 121 (4th Cir. 2022) (“Thus,

for a claim to treat someone as a publisher under §230(c)

(1), the claim must seek to impose liability based on the

defendant’s dissemination of information to someone who

is not the subject of the information.”).

C.

By contrast, Subsection 230(c)(2) Immunizes an

ICS’s Good Faith Actions to Remove Harmful

or Offensive Content.

While subsection (c)(1) prevents liability for claims

which treat an ICS as a publisher, subsection (c)(2)

provides immunity for an ICS’s actions, taken in good

faith, to remove content that is harmful or offensive.

Unfortunately, the lower courts have often ignored (c)

(2) altogether. See, e.g., Roommates.com, 521 F.3d at

1179 (“The second part of this subsection, § 230(c)(2), is

more accurately characterized as an immunity provision,

but is not relevant to our discussion here.”) A proper

plain language interpretation requires both sections be

considered. See Loughrin v. United States, 573 U.S. 351,

358 (2014) (citing Williams v. Taylor, 529 U.S. 362, 404

(2000)) (Congress “must give effect … to every clause and

word of a statute.”).

“No provider … of an interactive computer service

shall be held liable on account of …any action voluntarily

taken in good faith to restrict access to or availability

of material that the provider … considers to be …

13

objectionable.”47 U.S.C.A. § 230 (c)(2)(A).Cf. Henderson,

53 F.4th at 119 (contrasting §230(c)(1) and (c)(2)). In other

words, §230(c)(2) provides limited immunity for actions

ICS’s face as a consequence of voluntarily restricting

offensive or harmful content in good faith. Current

interpretations of §230 have disregarded the “good

faith” element in §230(c)(2). The lower courts agree that

Congress intended to protect ICS’s through §230 for

the purpose of incentivizing them to voluntarily remove

harmful and offensive content. Roommates, 521 F.3d at

1163-63. (citing craigslist, 519 F.3d) (quoting GTE Corp.,

347 F.3d at 659–60). However, the lower courts have used

the “editorial functions” test in §230(c)(1), to protect an

ICS’s actions (or inactions) while ignoring §230(c)(2). See

Zeran v. America Online, Inc.,129 F. 3d 327, 330 (4th Cir.

1997). Not only is this a severe departure from the plain

language but it has completely thwarted Congressional

intent. This is because such an interpretation provides

immunity for actions taken by an ICS without the good

faith element. This removes the incentive structure

Congress designed. “Extending immunity to Bad

Samaritans undermines § 230’s mission by eliminating

incentives for better behavior by those in the best position

to minimize harm.”15 Additionally, protecting an ICS’s

15. Danielle Keats Citron and Benjamin Wittes, The Internet

Will Not Break: Denying Bad Samaritans § 230 Immunity, 86

Fordham L. Rev. 401, 416 (2017) at https://ir.lawnet.fordham.

edu/flr/vol86/iss2/3. See also GTE Corp., 347 F.3d at 660 (“If this

reading is sound, then § 230(c) as a whole makes ISPs indifferent

to the content of information they host or transmit: whether they

do (subsection (c)(2)) or do not (subsection (c)(1)) take precautions,

there is no liability under either state or federal law. As precautions

are costly, not only in direct outlay but also in lost revenue from the

filtered customers, ISPs may be expected to take the do-nothing

option and enjoy immunity under § 230(c)(1).”).

14

actions under §230(c)(1), instead of properly under §230(c)

(2), makes §230(c)(2) irrelevant. See Gregory M. Dickinson,

An Interpretive Framework for Narrower Immunity

Under Section 230 of the Communications Decency Act,

33 Harv. J.L. & Pub. Pol’y 863, 869 (2010).

Therefore, a proper interpretation of §230 adheres

to the plain language by narrowly preventing certain

claims in §230(c)(1), and certain actions taken by an ICS

in §230(c)(2), if taken in good faith.

II. Courts Have Incorrectly Interpreted §230(C)(1) As

a Broad Immunity Provision, In Defiance of The

Plain Language, Thereby Expanding Protections

For ICSs To Include Even Their Own Knowing and

Intentional Wrongful Conduct.

A.

Lower Court Interpretations of §230 have

Incorrectly Interpreted and Expanded the

Meaning of “Publisher” Under §230(c)(1) and

Ignored §230(c)(2) Altogether.

Courts have interpreted §230(c)(1) as a stand-alone

immunity provision for virtually any claims against a

website where third-party information is implicated. At

the same time, courts have often ignored §230(c)(2)—

which does contain a specific limitation on liability for

actions to remove offensive content. The result is websites

have received broad immunity for any decisions related

to removing, or not removing content. Instead, courts

should have analyzed §230(c)(1) by looking at whether the

claims sought to treat the ICS as the publisher in order

to establish liability, and recognized that §230(c)(2) is the

place to analyze whether good faith removal protections

15

were at issue. The failure to adhere to the plain language

has produced a long line of flawed reasoning and unjust

results. This began with Zeran.

The Fourth Circuit decision in Zeran is the progenitor

of the theory that subsection (c)(1) is a stand-alone

immunity provision. See generally Zeran,129 F. 3d at 327.

The court proclaimed with no analysis or support that, “By

its plain language, §230 creates a federal immunity to any

cause of action that would make service providers liable

for information originating with a third-party user of the

service.” Id. at 330. Instead of looking to a dictionary, or

other authority for a definition of “publisher,” the court

proffered its own articulation of the publishing function:

“Thus, lawsuits seeking to hold a service provider liable

for its exercise of a publisher’s traditional editorial

functions—such as deciding whether to publish, withdraw,

postpone or alter content—are barred.” Id.

The statute addresses these two issues separately

and the plain language should control. By protecting ICSs

for any action related to decisions whether to remove, or

not remove, content in §230(c)(1), this interpretation has

swallowed §(c)(2) and eliminated the good faith element,

effectively rendering §230(c)(2) useless and protecting

16

ICS’s even for failing to remove content in bad faith.

16. See Danielle Keats Citron and Benjamin Wittes, The

Internet Will Not Break: Denying Bad Samaritans § 230 Immunity,

86 Fordham L. Rev. 401, 416 (2017). (“Extending immunity to Bad

Samaritans undermines § 230’s mission by eliminating incentives

for better behavior by those in the best position to minimize harm.”).

16

B. The Ninth Circuit in Gonzalez v. Google

Incor rectly Inter preted §230(c)(1) as a

Broad Immunity Provision and Incorrectly

Held it Immunized Google’s Own Knowing

a nd I nt entiona l Conduc t T h rough it s

Recommendation Algorithms.

Addressing the case at hand, Gonzalez v. Google, and

the issue on appeal, whether §230(c)(1) immunizes targeted

recommendations by a platform, the Ninth Circuit erred

where it interpreted §230(c)(1) as an immunity provision

and applied this “immunity” to Google’s own conduct.

Gonzalez v. Google LLC, 2 F.4th 871, 887 (9th Cir. 2021),

cert. granted, No. 21-1333, 2022 WL 4651229 (U.S. Oct.

3, 2022).

From the outset, the Ninth Circuit erred by espousing

the reductionist Zeran line of reasoning: Publishing

encompasses “any activity that can be boiled down to

deciding whether to exclude material that third parties

seek to post online....” Roommates.com, 521 F. 3d at 117071. Instead of focusing on whether plaintiffs’ claims in this

case depended on treating Google as the publisher of thirdparty content for liability, the Ninth Circuit concluded,

“[t]his element is satisfied when the duty that the plaintiff

alleges the defendant violated derives from the defendant’s

status or conduct as a ‘publisher or speaker.” Gonzalez,

2 F. 4th at 891 (quoting Barnes v. Yahoo!, Inc., 570 F.3d

1096, 1102 (9th Cir. 2009) (emphasis added).

Incorrectly, the Ninth Circuit focused on whether

“editorial decisions” were implicated to determine if

Google was a “publisher” and therefore deserving of

“immunity.” Because third-party content was implicated,

and because at least part of the complained of behavior

17

by Plaintiffs could be traced to removing, or failing to

remove content, concluded Google must be a publisher and

therefore must have “immunity.” This was error. Virtually

anything a website does can conceivably be traced to

“deciding whether to exclude material that third parties

seek to post online.” Instead, the key inquiry under §230(c)

(1) is whether the claims turn on the initial publication

for liability. The claims in this case do not and therefore

should not have been precluded by §230(c)(1).

Furthermore, the Court magnified its error by finding

Google’s proprietary algorithms to be neutral tools

engaged in editorial functions. First, the “neutral tools”

argument has no connection to the plain language of the

statute.17 But regardless, algorithms are not neutral tools.

A recommendation algorithm is much different than a tool

which determines how content is displayed on a website

for example. Rather, it is an interactive tool designed to

shape user behavior in order to maximize profit. Google is

in control of its algorithm and makes changes to increase

profit and could easily make changes to increase safety.

This is all part of Google’s own product design and

therefore Google has a duty to make it safe against known

dangers. The Ninth Circuit’s mistake was focusing on the

involvement of third-party content and overlooking that

the claim was focused on Google’s own conduct.18

17. A claim that seeks to treat an ICS as the publisher of

third-party content would be precluded under §230(c)(1) no matter

the tools involved in displaying the content originally. And tools

involved in the good-faith removal of content would be protected

under §230(c)(2) so any theory regarding an ICS’s tools being

“neutral” should be limited to these two contexts.

18. Similarly, the Ninth Circuit was correct that the

Plaintiffs’ claims for revenue sharing are outside of immunity

18

III. The Courts’ Misinterpretation of §230(c)(1) has

Disregarded the Statute’s Stated Child Protection

Purpose, Leading to Children Suffering Harm

without Recourse.

The expansive interpretation of CDA §230(c)(1) has

effectively closed the courthouse doors to survivors of

technology-enabled sexual abuse and exploitation. The

lower courts have incorrectly elevated the purpose of

encouraging internet growth while disregarding §230’s

other purpose: the safeguarding of children. §230’s text

does not require blanket immunity for internet companies

and both purposes of §230 should inform its interpretation.

Instead, in case after case, courts have summarily turned

away civil plaintiffs seeking to hold online platforms

accountable if their allegations had any nexus to content

posted by a third-party. This is incorrect, unjust, and not

what §230(c)(1) requires. Congress never intended these

companies to be shielded for serious harm caused by their

own conduct.

A.

The Stated Purposes of CDA 230 Include

Protecting Children from Harmful Content.

The lower courts incorrectly prioritize one of §230

purposes over both the provision’s plain language and its

child-protection and safety purpose. Courts that immunize

websites from sexual abuse survivors’ claims routinely

cite Zeran’s broad language about Congress’s purpose

in adopting §230. According to these courts, Congress’s

overriding concern was catalyzing the growing internet

because they do not treat Google as the publisher of third-party

information. Gonzalez, 2 F.4th at 898.

19

as a vibrant marketplace of ideas. But these decisions

often overlook another focus of Congress that was just

as formative for §230—the protection of children from

harmful online content.

In §230 Congress codified five policies of the United

States. The first two policies address the development

of the internet and the desirability of preserving it

as a “vibrant and competitive free market.” 47 U.S.C.

§ 230(b)(1-2). The final three policies are focused on

the fact that not everything on the internet is safe or

desirable. Specifically, Congress announced its policy of (1)

encouraging technology that will give users, like families

and schools, control over the information they receive; (2)

removing disincentives for the development and utilization

of filtering and blocking technologies to help parents

restrict their children’s access to objectionable and

inappropriate content online; and (3) ensuring “vigorous

enforcement of Federal criminal laws to deter and punish

trafficking in obscenity, stalking, and harassment by

means of computer.” Id. at § (b)(3-5).

Congress’s concern for the protection of children from

harmful and objectionable material is evident in the rest of

the Communications Decency Act. When it enacted §230,

Congress also created sweeping actions to protect children

from obscene and harmful material.19 It is not reasonable

19. See TELECOMMUNICATIONS ACT OF 1996, Pub.

L. 104-104, February 8, 1996, 110 Stat 56 at § 502 (prohibiting

the display of obscene material to children); § 508 (criminalizing

enticing minors to “engage in prostitution or any sexual act for

which any person may be criminally prosecuted”) § 551 (requiring

ratings as to whether programing contains sexual, violent, or

other indecent material so that parents can prevent their children

20

then, to maintain that Congress simultaneously sought to

protect children from harmful material through the CDA

and give internet companies carte blanch immunity for

knowingly allowing their platforms to be the means of

child sexual exploitation. However, the precedent set by

Zeran has done exactly that.

The Zeran court improperly used purpose to drive

interpretation instead of the plain language. Zeran, 129

F.3d at 330; see also Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts, § 2 at

56-57 (2012) (“ . . . the purpose must be defined precisely,

and not in a fashion that smuggles in the answer to a

question before the decision-maker.”). Zeran then doubled

its error by letting only one purpose drive and leaving

the other on the curb. Id. at 333, 334, 335 (expounding at

length on Congressional intent to encourage the growth

of the internet and protect internet speech but giving

only one brief mention of §230’s child protection purpose.).

This approach launched a long line of improper §230

interpretations, which thwarted congressional intent

by not only protecting ICSs for knowingly subjecting

people, and especially children, to harmful content, but

for disseminating abuse material where children and other

vulnerable people were the subject of the content.

seeing programing they deem inappropriate); § 552 (encouraging

the creation of a technology fund to facilitate the development of

technology to block objectionable content); and § 641 (requiring

television channels to scramble sexually-oriented programing).

21

B. The Courts’ Expanded Interpretation of §230(c)

(1) has Led to Harmful and Unjust Results for

Survivors.

The misinterpretation of §230 has led to results

entirely at odds with the statutory purposes discussed

above, particularly with respect to sexual abuse and

exploitation, in cases involving child pornography and sex

trafficking violations.

1.

The Misinterpretation of §230(c)(1) has

Improperly Immunized Websites that

Knowingly Violate Laws Against Child

Pornography.

Although it didn’t deal with technology-facilitated

sexual abuse, the Zeran decision’s expansive approach to

interpreting §230(c)(1) looms large every time a survivor

seeks justice for harm involving the internet. §230(c)(1)

has even been construed to immunize knowing violations

of laws prohibiting child pornography leaving immensely

harmed children without relief and providing perverse

incentives for ICSs.

In one of the earliest cases to address CDA §230 in

the context of sexual abuse, a 4-3 majority of the Florida

Supreme Court held that §230(c)(1) provided immunity

for a negligence claim brought by a mother on behalf of

her eleven-year-old son, who had been victimized by a

sexual predator using the online platform America Online

(“AOL”). Doe v. Am. Online, Inc., 783 So.2d 1010 (Fla.

2001). In AOL, the mother sought to hold AOL accountable

for allowing the advertising of “a visual depiction of sexual

conduct involving [her son]” on the AOL platform. Id. at

22

1012. Quoting at length from both the Fourth Circuit

and District Court decisions in Zeran, the AOL majority

followed Zeran’s logic to determine that “AOL falls

squarely within this traditional definition of a publisher

and, therefore, is clearly protected by § 230’s immunity.”

Id. at 1017.

Wr iting for a three -justice minor ity, Justice

Lewis dissented. Id. at 1018. “Through the majority’s

interpretation, the so-called ‘Decency Act’ has, contrary to

well-established legal principles, been transformed from

an appropriate shield into a sword of harm and extreme

danger which places technology buzz words and economic

considerations above the safety and general welfare of our

people.” Id. at 1019. Justice Lewis was incredulous that

an internet company’s conduct and knowledge regarding

child pornography being advertised on its platform could

be irrelevant to its liability under CDA § 230.

[I]t is inconceivable that Congress intended the

CDA to shield . . . an ISP alleged to have taken

absolutely no actions to curtail . . . conduct

defined as criminal, despite actual knowledge

that . . . child pornography was being advertised

and delivered through . . . its service by an

identified customer, while profiting from its

customer’s continued use of the service.

Id. at 1028. (emphasis added). He warned, “I fear that the

blanket immunity interpretation adopted by the majority

today thrusts Congress into the unlikely position of

having enacted legislation that encourages and protects

the involvement of ISPs as silent partners in criminal

enterprises for profit.” Id. His words were prescient.

23

This Court has said that child pornography (i.e.

CSAM) is “intrinsically related to the sexual abuse of

children,” and recognized a compelling state interest in

targeting CSAM production and distribution. New York

v. Ferber, 458 U.S. 747, 759 (1982). Because CSAM is

uniquely harmful, Congress has given victims of CSAM

civil causes of action for knowing violations of federal law

concerning CSAM. See 18 U.S.C. §§ 2252A(f) and 2255.

Tragically, however, the broad-immunity courts have read

into §230(c)(1) has repeatedly been used to dismiss civil

claims at their earliest stage. 20

For example, in Doe v. Bates, parents sued the ICS

Yahoo! alleging that it stored child pornography depicting

their son on its computers, knowingly permitting it to

be “distributed [] to pedophiles all over the world” and

20. Earlier this year, Judge Coogler in the Northern District

of Alabama, reached a different conclusion.

Section 230 does not apply to their claim that

Defendants knowingly received, possessed, and

distributed child pornography, for several reasons.

First, child pornography is not lawful “information

provided by another information content provider” as

contemplated by Section 230. …. Rather, it is illegal

contraband, stemming from the sexual abuse of a child,

beyond the covering of First Amendment protection,

and wholly outside any other protection or immunity

under the law, including Section 230. In other words,

Section 230’s prohibition on ICSs being treated as

“speaker[s]” of “information” is not implicated here

because child pornography is not protected speech

and conveys no legally cognizable information.

Doe #1 v. MG Freesites, LTD, 7:21-CV-00220-LSC, 2022 WL

407147, at *22 (N.D. Ala. Feb. 9, 2022).

24

“profited from its actions.” Doe v. Bates, No. 5:05-CV91-DF-CMC, 2006 WL 3813758, at *6 (E.D. Tex. 2006).

Despite these allegations, the district judge dismissed

the parents suit under 18 U.S.C. § 2252A, concluding that

“§230 generally ‘creates a federal immunity to any cause

of action that would make service providers liable for

information originating with a third-party of the service

and have applied the immunity to a wide variety of claims

regardless of the terms in which they were described.’”

Id. at 19 (quoting Zeran, 129 F.3d at 330); see also M.A.

ex rel. P.K. v. Vill. Voice Media Holdings, LLC, 809 F.

Supp. 2d 1041, 1055 (E.D. Mo. 2011) (dismissing civil childpornography claim under §230).

More recently, in John Does #1 and #2 v. Twitter, a

district judge held that §230 gave full immunity to Twitter

for a claim under 18 U.S.C. § 2252A that it knowingly

possessed and distributed the child pornography of

two 13-year-old boys on its platform. Twitter, 555 F.

Supp. at 926-28. The plaintiffs argued that Bates was

wrongly decided and Zeran was inapposite, given the

uniquely harmful character of child pornography, which

as contraband was not information subject to “traditional

editorial functions.” “While this argument has some

force,” the district judge answered, “it does not square

with Ninth Circuit authority, which has found that ‘to

avoid chilling speech, Congress ‘made a policy choice ...

not to deter harmful online speech through the separate

route of imposing tort liability on companies that serve

as intermediaries for other parties’ potentially injurious

messages.’” Id. at 928 (quoting Gonzalez, 2 F.4th at 886

(citing Carafano v. Metrosplash.com, Inc., 339 F.3d 1119,

1123 (9th Cir. 2003) (quoting Zeran, 129 F.3d at 330)).

25

In each of the §230 cases dealing with child pornography

the internet company did not dispute the allegations that

it had knowingly violated the law. Instead, all defended

solely based on §230. The Zeran decision stressed that its

interpretation of 230(c)(1), which gives absolute immunity

regardless of knowledge, is correct because “liability upon

notice reinforces service providers’ incentives to restrict

speech and abstain from self-regulation.” Zeran, 129

F.3d at 333. As these cases make clear, however, when

platforms have an ironclad safe harbor from civil liability

for child pornography laws, they are decidedly less likely

to self-regulate.

By applying Zeran’s interpretative approach to grant

per se immunity for knowing possession and distribution

of child pornography (something no non-internet industry

has ever enjoyed), courts have thus interpreted §230 not

only in contravention of its plain language but also its

purpose. As Justice Lewis stated:

W hat conceivable good cou ld a st atut e

purporting to promote ISP self-policing efforts

do if, by virtue of the courts’ interpretation of

that statute, an ISP which is specifically made

aware of child pornography being distributed

by an identified customer through solicitation

occurring on its service, may, with impunity,

do absolutely nothing, and reap the economic

benefits flowing from the activity?

AOL, 783 So. 2d at 1024–25.

26

2.

The Misinterpretation of §230(c)(1) has

Immunized Websites that Knowingly

Violate Laws Against Sex Trafficking.

Under the Zeran interpretative model, sex-trafficking

victims have also been denied access to the courthouse as

§230 has been construed to immunize knowing violations

of laws prohibiting sex trafficking. Lower courts have

clung fiercely to the idea that §230 is meant to protect the

internet, and by extension ICSs, at all costs. This position

has continued, even after Congress acted in the interim

to expand protections for victims of sex trafficking. 21

Congress directly addressed human trafficking

when it enacted the Trafficking Victims Protection Act

of 2000 (TVPA). 22 “Trafficking in persons”—Congress

found—“is a modern form of slavery, and it is the largest

manifestation of slavery today.” 22 U.S.C. § 7101(b)

(1). Congress noted the need for a more comprehensive

approach to address trafficking. “Existing legislation and

law enforcement in the United States and other countries

are inadequate to deter trafficking and bring traffickers

to justice, failing to reflect the gravity of the offenses

involved. No comprehensive law exists in the United

States that penalizes the range of offenses involved in the

trafficking scheme.” Id. at § 7101(b)(14).

With regard to sex trafficking, Congress created a

criminal offense for knowing acts to cause an adult or

minor to engage a commercial sex act – 18 U.S.C. § 1591(a)

21. Allow States and Victims to Fight Online Sex Trafficking

Act of 2017, Pub. L. No. 115-164 (2018).

22. Trafficking Victims Protection Act of 2000, Pub. L. No.

106-386, 114 Stat. 1466, 1487–88.

27

and a private right of action for sex-trafficking victims. 23

As internet websites were increasingly used to facilitate

sex buying and selling, sex-trafficking victims have sought

to bring TVPA claims against online platforms that

facilitated their trafficking. However, many courts applied

Zeran’s broad-immunity interpretation of §230 to dismiss

these claims. For example, in M.A., supra, a district court

found that a victim of trafficking had no recourse against a

website that participated in her “horrific victimization” at

the age of 14. M.A., 809 F.Supp.2d at 1043. Citing Zeran,

the district court found that it made no difference that

the website was aware of sex-trafficking on its platform:

“even if a service provider knows that third parties are

posting illegal content, the service provider’s failure to

intervene is immunized.” Id. at 1051 (quotation omitted).

In Jane Doe No 1 v. Backpage.com, LLC, 817 F.3d 12

(1st Cir. 2016), the First Circuit affirmed the dismissal

of civil claims of sex-trafficking victims. The Backpage.

com decision is built upon Zeran’s expansive approach

to interpreting §230(c)(1). First, it adopted the nebulous

but expansive concept of immunity for any conduct or

content that could fall within “traditional publishing or

editorial functions.” Id. at 20. Second, the Backpage.

com decision relies heavily on a purposive construction

of §230. The Backpage.com court acknowledged that

its broad interpretation of §230 was premised on policy

considerations. “[W]ebsites that display third-party

content may have an infinite number of users generating

an enormous amount of potentially harmful content, and

holding website operators liable for that content ‘would

have an obvious chilling effect’ in light of the difficulty of

23. See Trafficking Victims Protection Reauthorization Act

of 2003, Pub. L. No. 108-193, § 4(a)(4)(A), 117 Stat. 2875, 2878

(codified at 18 U.S.C. § 1595).

28

screening posts for potential issues.” Id. at 19 (quoting

Zeran, 129 F.3d at 331). Significantly, the Backpage.com

court illustrated the breadth of its interpretation of §230

immunity by noting that it would make no difference if

it could be conclusively established that Backpage.com

knowingly committed the predicate acts in violation of 18

U.S.C. § 1591(a)(2). Id. at 21.

Congress responded to the First Circuit’s Backpage.

com decision by specifically amending CDA § 230. See H.R.

Rep. No. 115-572 at 4-5 (2018); and S. Rep. No. 115-199 at

2, n. 6 (2018) (both referencing Backpage.com, 817 F. 3d at

19-22). That amendment—the Allow States and Victims

to Fight Online Trafficking Act of 2017 (“FOSTA”)—

announces its purpose with an enacted preamble. “It is the

sense of Congress that… section 230 … was never intended

to provide legal protection to websites that unlawfully

promote and facilitate prostitution and websites that

facilitate traffickers in advertising the sale of unlawful

sex acts with sex trafficking victims. . . .” Allow States and

Victims to Fight Online Sex Trafficking Act of 2017, Pub.

L. No. 115-164 (2018) at 2 (emphasis supplied). 24 FOSTA’s

purpose statement is reinforced by the clarification that

Congress added to CDA 230: “Nothing in this section . . .

shall be construed to impair or limit--any claim in a civil

action brought under section 1595 of Title 18, if the conduct

24. An enacted preamble, such as this one is a helpful indicator

of the amendment’s meaning because an enacted preamble such as

this one “set[s] forth the assumed facts and the purposes that the

majority of the enacting legislature [] had in mind, and these can

shed light on the meaning of the operative provisions that follow.”

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts, § 34 at 218 (citing Joseph Story, Commentaries on

the Constitution of the United States, § 459 at 326 (2d ed. 1858).

29

underlying the claim constitutes a violation of section 1591

of that title.” 47 U.S.C. § 230(e)(5)(A) (emphasis supplied).25

Notwithstanding Congress’s clarification through

FOSTA, courts continue to follow Zeran and Backpage.

com and hold that internet companies are immune from

civil sex-trafficking claims. For example, in Doe v. Kik

Interactive, Inc., a federal judge dismissed the claims of

a minor plaintiff who was sexually exploited on the online

platform Doe v. Kik Interactive, Inc., 482 F.Supp.3d 1242

(S.D.Fla. 2020). The Kik court noted Zeran’s pronunciation

of Congress’s intent, id. at 1248, and went on to state that

“if it were not for FOSTA, Defendants in this case would

be completely immune from liability under the CDA.” Id.

at 1250 (citing § 230(c)(5) and Doe v. MySpace, Inc., 528

F.3d 413 (5th Cir. 2008). Considering the court’s view, it

is unsurprising, though no less disturbing, that it found

complete immunity under the CDA despite FOSTA. Id.

at 1252.

Even after Congress’s intervention, history seems to

be repeating itself as some courts have followed the Kik

approach to interpreting FOSTA rather than looking to

the plain language. In a dynamic very similar to the Zeran

court’s interpretation of §230, these courts have construed

FOSTA by relying heavily on their interpretation of

legislative intent, which supposedly provides only narrow

(some would say impossibly narrow) relief for victims in

25. This is classic instructive language on Congress’s part.

Cf., N. L. R. B. v. Drivers, Chauffeurs, Helpers, Loc. Union No. 639,

362 U.S. 274, 282 (1960) (recognizing “shall be construed” was “a

command of Congress to the courts to resolve doubts and ambiguities

in favor of an interpretation … as understood prior to” legislative

developments).

30

favor of continued protections for platforms. Id. at 125051. Most recently, the Ninth Circuit affirmed dismissal

of sex-trafficking claims by minors whose abuse images

were distributed broadly on the online platform Reddit,

despite hundreds of notices and pleas for removal. Reddit,

51 F.4th. See also, M.H., 2022 WL 93575, at *1; and G.G. v.

Salesforce.com, Inc., No. 20-CV-02335, 2022 WL 1541408,

at *15 (N.D.Ill. May 16, 2022). 26

By applying Zeran’s interpretative approach to

grant per se immunity for enabling and profiting from

sex trafficking, courts have departed from §230’s plain

language, with unjust results that Congress never

intended.

Rather than incentivizing “Good Samaritan” behavior

by internet companies, the prevailing misinterpretation

of §230 shields them from accountability for the harm

their own conduct causes, even when they knowingly

facilitate sexual abuse and exploitation. Returning to the

plain language of §230 would restore access to justice

for survivors. It doesn’t mean that every claim will be

successful—only that they will have their day in court.

26. Other courts have held that FOSTA only requires that

a Plaintiff alleged a violation of 1595. Twitter, 555 F. Supp. 3d at

894, abrogated by Reddit, 51 F.4th; Doe v. Mindgeek USA Inc.,

574 F. Supp. 3d 760, 763 (C.D. Cal. 2021), abrogated by Reddit, 51

F.4th; Fleites v. MindGeek S.A.R.L., No. CV2104920CJCADSX,

2022 WL 4456077, at *1 (C.D. Cal. July 29, 2022).

31

CONCLUSION

For the reasons above the decision of the Ninth Circuit

Court of Appeals should be reversed.

December 7, 2022

Respectfully submitted,

Lisa D. Haba

A dam A. Haba

Maria E. Bryant

The Haba Law Firm, P.A.

1220 Commerce Park Dr.,

Suite 207

Longwood, FL 32779

(844) 422-2529

Peter A. Gentala

Counsel of Record

Benjamin W. Bull

Danielle Bianculli Pinter

Christen M. Price

National Center on Sexual

Exploitation

1201 F. St., NW, Suite 200

Washington, DC 20004

(202) 393-7245

pgentala@ncoselaw.org

Counsel for Amici Curiae