Amicus Curiae Brief — John Doe, Through Next Friend Jane Roe, Petitioner v. Snap, Inc., dba Snapchat, L.L.C., dba Snap, L.L.C.

No. 23-961

In the

Supreme Court of the United States

JOHN DOE, THROUGH NEXT FRIEND JANE ROE,

Petitioner,

v.

SNAP, INC., DBA SNAPCHAT, L.L.C.,

DBA SNAP, L.L.C.,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Fifth Circuit

BRIEF OF AMICI CURIAE

CHILD USA, NATIONAL CENTER ON

SEXUAL EXPLOITATION (“NCOSE”)

AND THE KEMPE FOUNDATION

IN SUPPORT OF PETITIONER

Prof. Marci A. Hamilton, Esq.

Founder & CEO

Counsel of Record

Jessica Schidlow, Esq.

Legal Director

Carina Nixon, Esq.

Senior Staff Attorney

Jessica Downes, Esq.

Staff Attorney

Child USA

3508 Market Street, Suite 202

Philadelphia, PA 19104

(215) 539-1906

marcih@sas.upenn.edu

Counsel for Amici Curiae

115159

Peter Gentala, Esq.

NCOSE

1201 F St NW, Suite 200

Washington, DC 20004

pgentala@ncoselaw.org

i

TABLE OF CONTENTS

Page

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

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

REASONS TO GRANT THE PETITION . . . . . . . . . . . 5

I. This Court Should Grant Certiorari to

A ddress the Proper Scope of Section 230

Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Prevailing Interpretation of

Section 230 Improperly Immunizes

Misconduct of Social Media

Platforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. This Court Should Resolve Questions

A b out W he n a nd Unde r W h at

Conditions Section 2 30 Protects

Social Media Platforms from Liability

for Their Own Misconduct . . . . . . . . . . . . . . 9

II. The Question Presented is Exceptionally

Important Because It Implicates Child

Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ii

Table of Contents

Page

A. The Prevailing Interpretation of Section

230 Undermines Its Predominant

Purpose to Provide Minors with a Safe

Online Experience . . . . . . . . . . . . . . . . . . . . 14

B. The Sweeping Immunity Afforded to

Social Media Companies Under Section

230 Has Facilitated an Explosion of Online

Exploitation and Abuse . . . . . . . . . . . . . . . . 18

C. The Prevailing Interpretation of

Section 230 Has Left Victims of

Online Abuse with No Leverage to

Hold Online Platforms Accountable

and Seek Redress for their Harm . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

TABLE OF CITED AUTHORITIES

Page

CASES

A.M. v. Omegle.com, LLC,

2022 WL 2713721 (D. Or. July 13, 2022) . . . . . . . . . . . 8

Bauer v. Armslist, LLC,

572 F. Supp. 3d 641 (E.D. Wis. 2021) . . . . . . . . . . .13

CYBERsitter, LLC v. Google, Inc.,

905 F. Supp. 2d 1080 (C.D. Cal. 2012) . . . . . . . . . . 22

Daniel v. Armslist, LLC,

926 N.W.2d 710 (Wis. 2019), cert. denied.

140 S.Ct. 562 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Doe v. Am. Online,

783 So. 2d 1010 (Fla. 2001) . . . . . . . . . . . . . . . . . . 6, 9

Doe v. Backpage.com, L.L.C.,

817 F.3d 12 (1st Cir. 2016) . . . . . . . . . . . . . . . . . . . . . 7

Doe v. Internet Brands, Inc.,

824 F.3d 846 (9th Cir. 2016) . . . . . . . . . . . . . . . 11, 12

Doe v. Kik Interactive, Inc.,

482 F. Supp. 3d 1242 (S. D. Fla. 2020) . . . . . . . . . . 8

Doe v. Myspace,

528 F.3d 413 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . 10

iv

Cited Authorities

Page

Doe v. Snap, Inc.,

88 F.4th 1069 (5th Cir. 2023) . . . . . . . . . . . . . . . . . . 5

Does 1-6 v. Reddit, Inc.,

51 F.4th 1137 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . 8

Dyroff v. Ultimate Software Grp., Inc.,

934 F.3d 1093 (9th Cir. 2019) . . . . . . . . . . . . . . . . . 11

Force v. Facebook, Inc.,

934 F.3d 53 (2d Cir. 2019) . . . . . . . . . . . . . . . . 4, 7, 11

FTC v. Accusearch Inc.,

570 F.3d 1187 (10th Cir. 2009) . . . . . . . . . . . . . . . . 13

Gonzalez v. Google LLC,

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

Herrick v. Grindr, LLC,

306 F. Supp. 3d 579 (S.D.N.Y. 2018),

aff’d, 765 F. App’x 586 (2d Cir. 2019),

cert. denied, 140 S. Ct. 221 (2019) . . . . . . . . . . . . . 11

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

817 F.3d 12 (1st Cir. 2016) . . . . . . . . . . . . . . . . . . . . 11

M. L. v. Craigslist Inc.,

2020 WL 6434845 (W.D. Wash. Apr. 17, 2020) . . . . 8

Lemon v. Snap, Inc.,

995 F.3d 1085 (9th Cir. 2021) . . . . . . . . . . . . . . 12, 13

v

Cited Authorities

Page

Malwarebytes, Inc. v.

Enigma Software Grp. USA, LLC,

141 S. Ct. 13 (2020) . . . . . . . . . . . . . . . . . . . . . . . 4, 23

Marshall’s Locksmith Serv. Inc. v. Google, LLC,

925 F.3d 1263 (D.C. Cir. 2019) . . . . . . . . . . . . . . . . 11

New York v. Ferber,

458 U.S. 747 (1982) . . . . . . . . . . . . . . . . . . . . . . .20, 21

Paroline v. United States,

572 U.S. 434 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . 21

Stokinger v. Armslist, LLC,

No. 1884CV03236F, 2020 WL 2617168

(Mass. Super. Apr. 28, 2020) . . . . . . . . . . . . . . . . . 11

United States v. Williams,

444 F.3d 1286 (11th Cir. 2006) . . . . . . . . . . . . . . . . 23

Zeran v. America Online, Inc.,

129 F.3d 327 (4th Cir. 1997) . . . . . . . . . . . . . . . . . 6, 7

STATUTES

47 U.S.C. § 230 . . . . . . . . . . . . . . 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,

. . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14, 18, 21, 23, 24

Fight Online Sex Trafficking Act (“FOSTA”),

Pub. L. No. 115–164, 132 Stat. 1253 . . . . . . . . . . . . . . 8

vi

Cited Authorities

Page

OTHER AUTHORITIES

164 Cong. Rec S 1827, 1830 (Sen. McCaskill). . . . . . . . . 22

164 Cong. Rec. H1290-02 (daily ed. Feb. 27, 2018)

(statement of Rep. Lee) . . . . . . . . . . . . . . . . . . . . . . . . 8

164 Cong. Rec. S1849-09 (daily ed. Mar. 21, 2018)

(statement of Sen. Wyden) . . . . . . . . . . . . . . . . . . . . . 15

Adam Satariano, British Ruling Pins Blame

on Social Media for Teenager’s Suicide,

T he New York T imes (Oct. 1, 2022) https://

w w w.ny ti mes.com / 2 0 2 2 /10/01 / business /

instagram-suicide-ruling-britain.html . . . . . . . . . . . 15

A lina Sely ukh, Section 230: A Key Legal

Shield For Facebook, Google Is About To

Change, NPR (Mar. 21, 2018) (statement

of Rep. Cox), https://www.npr.org/sections/

alltechconsidered /2018/03/21/591622450/

section-230-a-key-legal-shield-for-facebookgoogle-is-about-to-change . . . . . . . . . . . . . . . . . . . . . . 8

vii

Cited Authorities

Page

Centers For Disease Control A nd Prevention,

National Center For Injury Prevention and

Control, Division of Violence Prevention,

Preventing Sexual Violence (last reviewed

by the CDC on Jan. 17, 2020), available at

https://w w w.cdc.gov/violenceprevention /

sex ua lv iolence /fastfact .html?CDC_ A A _

ref Val=https%3A%2F%2Fw w w.cdc.gov%

2Fviolenceprevention%2Fsexualviolence

%2Fconsequences.html . . . . . . . . . . . . . . . . . . . . . . . 20

Charles Hymas, Snapchat accounts for nearly half

of recorded online grooming crimes against

children, T he T elegra ph (Aug. 15, 2023),

https://www.telegraph.co.uk/news/2023/08/15/

snapchat-half-online-grooming-crimes-againstchildren/#:~:text=Snapchat%20accounted%20

for%20nearly%20half,data%20obtained%20by

%20the%20NSPCC . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Craig Timberg, YouTube Says It Bans Preteens

But Its Still Delivering Troubling Content

to Young Children, T he Washington Post

(Mar. 14, 2019), available at https://w w w.

washingtonpost.com/technology/2019/03/14/

youtube-says-it-bans-preteens-its-site-its-stilldelivering-troubling-content-young-children/ . . . . . 22

viii

Cited Authorities

Page

Dan Milmo, Molly Russell inquest must lead

to action on internet dangers, says coroner,

The Guardian (Sept. 29, 2022) https://www.

theguardian.com/technology/2022/sep/29/

molly-russell-inquest-must-lead-to-action-oninternet-dangers-says-coroner . . . . . . . . . . . . . . . . . 16

Devi Sridhar, Social media could be as harmful to

children as smoking or gambling—why is this

allowed? The Guardian (Jul. 4, 2023), https://www.

theguardian.com/commentisfree/2023/jul/04/

smoking-gambling-children-social-mediaapps-snapchat-health-regulation . . . . . . . . . . . . . . . 15

E u r . Pa rli a m en ta ry R sch . S erv., C u rbing

the surge in online child abuse: T he dual

role of digital technology in fighting and

facilitating its proliferation 2 (Nov. 2020),

https://w w w.europarl.europa.eu/RegData/

etudes/BRIE/2020/659360/EPRS_BRI(2020)

659360_EN.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Faith Ridler, THIRTY Families Blame Social

Media Firms for Their Roles in Children’s

Suicides as it Emerges Pinterest Sent a

Personalised Email to Molly Russell’s

Account with Self-Harm Images AFTER

She Took Her Own Life, DailyM ail (Jan.

27, 2019, 1:20 PM), https://www.dailymail.

co.uk/news/article-6636807/Now-30-familiesblame-social-media-firms-roles-childrenssuicides.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ix

Cited Authorities

Page

G. Wells, J. Hor witz, and D. Seetharaman,

Facebook Knows Instagram is Toxic for Teen

Girls, Documents Show, T he Wall Street

Journal (Sep. 14, 2021), https://www.wsj.com/

articles/facebook-knows-instagram-is-toxicfor-teen-girls-company-documents-show11631620739 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Julie Jargon, Teen Boys are Falling for a

Snapchat Nude-Photo Scam, Here’s How to

Avoid It, T he Wall Street Journal (Nov.

18, 2023), https://www.wsj.com/tech/personaltech/teen-boys-are-falling-for-a-snapchatnude-photo -scam-heres-how-to -avoid-it97a830c8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

K.G Orphanides, The Paedophile Scandal Shows

YouTube is Broken. Only Radical Change

Can Fix It, Wired (Feb. 23, 2019), https://

www.wired.co.uk/article/youtube-paedophilesboycott-algorithm-change . . . . . . . . . . . . . . . . . . . . . 17

Leonard, M.M., ‘I did what I was directed to

do but he didn’t touch me’: The impact of

being a victim of internet offending, 16 J. of

Sexual Aggression 249, 254 (2010) . . . . . . . . . . . . . . 21

x

Cited Authorities

Page

Michael H. Keller & Gabriel J.X. Dance, The

Internet Is Overrun With Images of Child

Sexual Abuse. What Went Wrong?, NYTimes.

com (Sep. 2019), available at https://www.

nytimes.com/interactive/2019/09/28/us/childsex-abuse.html?msclkid=531b2a24a55511

ec9733999ed45d40bd . . . . . . . . . . . . . . . . . . . . . . . . . 18

Mike Martindale, Ex-hockey coach sentenced

for sending player nude pics, The Detroit News

(Oct. 15, 2015), https://www.detroitnews.com/

story/news/local/oakland-county/2015/10/01/

ex-hockey-coach-novi-sentenced-sending-nudephotos-player/73168960/ . . . . . . . . . . . . . . . . . . . . . . . 19

Nationa l C enter for M issing & E x ploited

Children, Child Pornography Possessors

A rrest ed in I n t ernet -R el at ed C rim es :

Findings from the National Juvenile Online

Victimiz at ion S t u dy, available at http://

us.missingkids.com /en_US/ publications/

NC144.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Nicolas Kristof, The Children of Pornhub,

NY Times (Dec. 4, 2020), https://www.nytimes.

com /2020/12/04/opinion /sunday/pornhubrape-trafficking.html . . . . . . . . . . . . . . . . . . . . . . . . . 19

Olivier Sylvain, Intermediary Design Duties,

50 Conn. L. Rev. 203, 218 (2018) . . . . . . . . . . . . . . . . 15

xi

Cited Authorities

Page

Protecting Youth Mental Health, U.S. Surgeon

General’s A dvisory (2021), https://www.hhs.

gov/sites/default/files/surgeon-general-youthmental-health-advisory.pdf . . . . . . . . . . . . . . . . . . . . 15

Regulation 28 Repor t to Prevent Future

Deaths, North L ondon C oroner’s Service

(Oct. 13, 2022), https://w w w.judiciary.uk/

wp-content/uploads/2022/10/Molly-RussellPrevention-of-future-deaths-report-20220315_Published.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Res p o n din g t o O nlin e Threa t s: Min o rs’

Perspectives on Disclosing, Repor ting,

and Blocking in 2021, T horn (Feb. 2023),

ht t p s: // i n fo.t hor n.org / hubfs / R e se a r ch /

Thorn_ROT_Monitoring_2021.pdf . . . . . . . . . . . . . . 19

Rya n Broder ick, Yo uTube’s Latest Chil d

Ex p l o i t a ti o n Co n t r o v e r s y Ha s Ki c k St ar t ed A War O ver Ho w t o Fi x Th e

Platform, Buzzfeed News (Feb. 22, 2019,

5:4 2 PM ), ht t p s: // w w w.bu z z fe e d ne w s .

com/article/ryanhatesthis/youtube-childsexual- exploitation-creators-watson . . . . . . . . . . . . 16

Shira Ovide, Big Tech Has Outgrown This Planet,

The New York Times (Oct. 12, 2021), https://

w w w.nytimes.com/2021/07/29/technology/

big-tech-profits.html . . . . . . . . . . . . . . . . . . . . . . . . . . 10

xii

Cited Authorities

Page

Social Media and Youth Mental Health: the

U.S. Surgeon General’s Advisory, U.S. Dep’t

Health & Hum. Servs. (May 23, 2023) . . . . . . . 17, 18

U.S. Dep’t of Justice, The National Strategy

For C hild E xploitation A nd P revention

A n d I n t e r d i c t i o n , 11 at D -1 2 (2 010),

available at http://www.justice.gov/psc/docs/

natstrategyreport.pdf . . . . . . . . . . . . . . . . . . . . . . . . 21

U.S. Sent ’g C omm ’n, F ederal Sentencing of

Child Pornography: P roduction Offenses

3 (2021), https://www.ussc.gov/sites/default/

files/pdf/research-and-publications/researchpublications/2021/20211013_ProductionCP.pdf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Von Weiler, J., Haardt-Becker, A., & Schulte, S.

Care and treatment of child victims of child

pornographic exploitation (CPE) in Germany,

16 J. of Sexual Aggression 211, 216 (2010) . . . . . . . 20

Wells, G., Horwitz, J., & Seetharaman, D., Facebook

Knows Instagram is Toxic for Teen Girls,

Company Documents Show, The Wall Street

Journal ( Sep. 14, 2021), available at https://www.

wsj.com/articles/facebook-knows-instagram-istoxic-for-teen-girls-company-documents-show11631620739?mod=hp_lead_pos7 . . . . . . . . . . . . . . . 22

1

INTERESTS OF AMICI CURIAE1

Amici are organizations dedicated to the prevention

of child sexual abuse and exploitation.

CHILD USA is a non-profit, interdisciplinary think

tank fighting for the civil rights of children. CHILD USA

pairs in-depth legal analysis and cutting-edge social

science research to determine the most effective public

policies to protect children from sexual abuse and online

exploitation and to ensure access to justice for victims.

Distinct from an organization engaged in the direct

delivery of services, CHILD USA produces evidencebased solutions and information needed by policymakers,

organizations, courts, media, and society as a whole to

increase child protection and the common good.

The National Center on Sexual 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.

1. All parties have received notice of amici’s intent to file

an amicus brief in the above-captioned matter. No counsel for a

party has authored this brief in whole or in part, and no party,

party’s counsel, or any other person – other than amici or their

counsel – has made a monetary contribution to the preparation or

submission of this brief. There is no relationship between CHILD

USA, The National Center on Sexual Exploitation, and The Kempe

Foundation, or its attorneys and petitioners or petitioners’ counsel.

2

The Kempe Foundation is a 501(c)(3) founded in

1976 to support the work of the Kempe Center for the

Prevention and Treatment of Child Abuse and Neglect

at the University of Colorado. The Kempe Center was

the first academic center in the United States dedicated

to the research and treatment of child abuse and

neglect. Founded in 1972, the Kempe Center is home

to approximately 80 experts in a variety of disciplines,

including medicine, behavioral health, law, and social

work, all of whom focus their research, teaching, and

advocacy on the prevention and treatment of child abuse

and neglect. The Kempe Foundation also independently

works to advance policies that improve the lives of children

and families by building teams of experts, legislators, and

advocates at the state, national, and international levels.

Amici write to emphasize the harmful impact that

broad interpretation of Section 230 has had on victims of

child sexual abuse and exploitation and to underscore the

urgency with which this Court’s review is needed to ensure

the protection of children online. Section 230’s failure to

incentivize tech companies to develop child-protective

processes has made child sexual exploitation and abuse a

feature of digital communication platforms and left victims

without recourse, which is inconsistent with Congress’s

intent. This case presents an opportunity for this Court to

change the incentive calculus by restoring interpretation

of Section 230 to its text and congressionally intended

purpose in favor of child-protection.

SUMMARY OF THE ARGUMENT

When Congress passed Section 230 as part of the

Communications Decency Act (“CDA”) twenty-eight years

3

ago, lawmakers promised some degree of protection for

children online – both from exposure to sexually explicit

material and from the harm attendant to exploitation and

abuse. In this respect it has failed, in large part because of

the expansive immunity read into Section 230 by federal

courts. Today, tech companies enjoy unprecedented

immunity from civil suit, even from knowing violations

of laws prohibiting child pornography 2 and trafficking.

Tragically, Section 230’s failure to incentivize tech

companies to adopt child protection-driven processes

has made sexual exploitation a feature of digital

communication platforms and has left victims like Doe

and their families without legal recourse. This was not

Congress’s intent when they set out on a broad campaign

to “clean up the internet.”

Congress passed Section 230 as a limited defense from

civil liability for internet service providers’ (“ISPs”) good

faith efforts to restrict or enable restriction to sexually

explicit or otherwise harmful content on their platforms.

Section 230 bars claims that impose liability on an ISP

based solely on the improper character of a third-party’s

post. 47 U.S.C. § 230(c)(1). That is a very circumscribed

set of claims.

The interconnected, dynamic online environment that

Section 230 presides over today is profoundly different

from that of the early static, content-repository days of

Prodigy, making Section 230’s limits on immunity more

important than ever for child protection. Predators

2. While the term child pornography is used in federal statutes,

this brief will use the term child sexual abuse material (“CSAM”)

instead, as it more accurately reflects the abuse depicted in these

images and videos and the resulting trauma to the child.

4

increasingly leverage social media platforms for easy

and direct access to potential victims. An ever-increasing

number of children are being groomed, exploited, and

abused online, and the images and videos of their abuse

are being viewed, collected, and redistributed at an

unprecedented rate. Social media companies, including

Snapchat, have the tools to address the dangers that lurk

on their platforms but have repeatedly chosen financial

profit over the protection of children. The question bears

asking, why are these companies granted immunity when,

as in this case, they have taken affirmative steps that

contributed to the plaintiff ’s injuries? Indeed, it is absurd

that a law originally intended to protect children from

explicit content online may be applied in such a way that it

instead protects the companies who facilitate their abuse.

As a “rising chorus” of jurists have recognized,

the prevailing interpretation of Section 230 improperly

immunizes the misconduct of online companies‒especially

social media platforms. See Gonzalez v. Google LLC, 2

F.4th 871, 913 (9th Cir. 2021) (Christian, J.) (“We share

the dissent’s concerns about the breadth of § 230. As

the dissent observes, ‘there is a rising chorus of judicial

voices cautioning against an overbroad reading of the

scope of Section 230 immunity’. . . .”.); Malwarebytes,

Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13,

14–15 (2020) (Thomas, J., statement respecting the denial

of certiorari) (positing that the “modest understanding”

of what Section 230 is meant to do based on its text “is

a far cry from what has prevailed in court”); Force v.

Facebook, Inc., 934 F.3d 53, 84 (2d Cir. 2019) (Katzmann,

J., concurring in part) (opining that Section 230 as applied

creates “extensive immunity . . . for activities that were

undreamt of in 1996” and “[i]t therefore may be time for

5

Congress to reconsider the scope of § 230”). The seven

dissenters to the Fifth Circuit’s underlying decision in this

case are merely the latest to express their skepticism and

call upon this Court to definitively determine the proper

scope of Section 230. Doe v. Snap, Inc., 88 F.4th 1069, 1073

(5th Cir. 2023) (Elrond, J. dissenting).

As this brief will explain, this case is an ideal vehicle

for this Court to clarify what the text of Section 230

already makes clear: when a plaintiff ’s claim is based

not on the content of the information shown but rather

on the affirmative conduct of the defendant, the Section

230 defense cannot be invoked as a shield from ordinary

tort liability.

REASONS TO GRANT THE PETITION

I. This Court Should Grant Certiorari to Address

the Proper Scope of Section 230 Immunity

The blanket immunity that courts have read into

Section 230 is antithetical to the statute’s plain language

and congressional intent. Rather than incentivizing

“Good Samaritan” behavior by internet companies, the

prevailing misinterpretation of Section 230 shields them

from accountability for the harm their own conduct causes,

even when they knowingly facilitate heinous crimes

against children. The Court should take this opportunity

to restore the narrow scope of Section 230 consistent

with its text and Congressional objectives, including child

protection.

6

A.

The Prevailing Interpretation of Section 230

Improperly Immunizes Misconduct of Social

Media Platforms

Overly broad construction of Section 230 can be

traced back to the Fourth Circuit’s decision in Zeran v.

America Online, Inc. 129 F.3d 327 (4th Cir. 1997). Relying

exclusively on Section 230’s purpose to protect online

providers in limited circumstances, without reference to

the statutory text or the law’s other purpose to protect

children, the court erroneously held that Section 230(c)(1)

creates immunity for “any cause of action that would make

service providers liable for information originating with

a third-party user of the service.” Id. at 330, 333. Justice

Clarence Thomas criticized the decision explaining that,

“[a]lthough the text of §230(c)(1) grants immunity only from

‘publisher’ or ‘speaker’ liability, the first appellate court

to consider the statute held that it eliminates distributor

liability too.” Malwarebytes, 141 S. Ct. at 15 (Thomas,

J., statement respecting the denial of certiorari) (citing

Zeran, 129 F.3d at 331–34). “Extending §230 immunity

beyond the natural reading of the text,” Justice Thomas

lamented, could have “serious consequences.” Id. at 18.

Illustrating that point is Doe v. Am. Online, one of

the earliest CSAM cases to adopt the Zeran approach.

783 So. 2d 1010 (Fla. 2001). In that case, a mother brought

a negligence claim on behalf of her eleven-year-old son,

John Doe, who had been victimized by a sexual predator

using the online platform America Online (“AOL”). Id. at

1012. Relying on Zeran’s broad interpretation of Section

230 immunity, the Florida Supreme Court rejected Doe’s

claims alleging that AOL had knowingly distributed and

permitted advertisements for CSAM on its platform, that

7

it had received complaints about CSAM depicting Doe on

its platform, and that it had failed to terminate the account

of the user it knew to be posting such material in violation

of the company’s terms of service. Id at 1017. In his incisive

dissent, Justice Lewis argued that the majority’s reliance

on Zeran was erroneous and that the decision

frustrate[d] the core concepts explicitly

furthered by the [Communications Decency]

Act and contravene[d] its express purpose . . .

[T]he 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 (Lewis, J., dissenting). He warned that the

majority’s approach to liability under Section 230 would

create “carte blanche immunity for wrongful conduct

plainly not intended by Congress.” Id.

As predicted, courts following Zeran have “read extra

immunity” into the statute “where it does not belong,” in a

manner far beyond what the text supports. Malwarebytes,

141 S. Ct. at 15 (Thomas, J., statement respecting the

denial of certiorari) (citation omitted). The effect has

been an alarming cascade of increasingly flawed decisions

providing online platforms with immunity for a vast array

of criminal and tortious activities that have very little to

do with publishing, such as: terrorism, Force, 934 F.3d

at 53; illegal firearm sales, Daniel v. Armslist, LLC, 926

N.W.2d 710, 715, 726 (Wis. 2019), cert. denied. 140 S. Ct.

562 (2019); and sex trafficking, Doe v. Backpage.com, LLC,

817 F.3d 12, 21 (1st Cir. 2016), to name a few.

8

Even after Congress enacted the Fight Online Sex

Trafficking Act (“FOSTA”) – which clarified that Section

230 does not provide legal protection to online service

providers that promote, facilitate, or materially benefit

from trafficking activities on their platforms – courts

still granted immunity to companies that knowingly

or recklessly facilitated these heinous crimes against

children despite the actual language of the Act. Pub.

L. No. 115–164, 132 Stat. 1253. See also 164 Cong. Rec.

H1290-02 (daily ed. Feb. 27, 2018) (statement of Rep. Lee);

Does 1-6 v. Reddit, Inc., 51 F.4th 1137, 1142 (9th Cir. 2022);

A.M. v. Omegle.com, LLC, 2022 WL 2713721, at *1 (D. Or.

July 13, 2022); M. L. v. Craigslist, Inc., 2020 WL 6434845,

at *10 (W.D. Wash. Apr. 17, 2020); Doe v. Kik Interactive,

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

This extreme approach that would immunize online

platforms for their own misconduct is impossible to

reconcile with the statute’s plain language, which clearly

indicates that the operative reasons for immunity are

restricting access to objectional content and “Good

Samaritan” screening. 47 U.S.C. § 230(c); see also Alina

Selyukh, Section 230 A Key Legal Shield For Facebook,

Google Is About To Change, NPR (Mar. 21, 2018)

(statement of Rep. Cox), https://www.npr.org/sections/

alltechconsidered/2018/03/21/591622450/section-230-akey-legal-shield-for-facebook-google-is-about-to-change.

Furthermore, broad construction of Section 230

has created a perverse incentive for online platforms to

behave recklessly in pursuit of profit. As Justice Lewis

questioned,

[w]hat conceivable good could a statute

purporting to promote ISP self-policing efforts

9

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. Without an obligation for

online companies to address harmful activities on their

platforms – no matter how easily they could do so – and

no requisite standard of care by which to conform their

conduct, consumers, and especially children and victims

of abuse, have been left to bear the consequences.

There is an urgent need for this Court to “take up the

proper interpretation of Section 230 and bring its wisdom

and learning to bear on this complex and difficult topic.”

Gonzalez, 2 F.4th at 926 (Gould, J., dissenting). This case

places these questions squarely before this Court because

each of Doe’s claims, which are grounded in Snapchat’s own

misconduct, were dismissed based on the Fifth Circuit’s

overbroad interpretation of Section 230 immunity. Given

the speed with which technology is advancing and the

ever-expanding use of social media among our Nation’s

youth, it is imperative that this Court intervene now to

resolve this issue of exceptional importance.

B. This Court Should Resolve Questions About

When and Under What Conditions Section

230 Protects Social Media Platforms from

Liability for Their Own Misconduct

The internet has changed in unimaginable ways since

Congress passed Section 230 as part of the CDA. Modern

10

tech companies like Snapchat are vastly larger, wealthier,

and more powerful than were the online service providers

of two decades ago, and the activities in which they engage

are less obviously about speech. See Shira Ovide, Big

Tech Has Outgrown This Planet, The New York T imes

(Oct. 12, 2021), https://www.nytimes.com/2021/07/29/

technology/big-tech-profits.html. Today’s virtual world

offers a multitude of products and services that would have

been unimaginable to Congress back in 1996, and poorly

designed digital products can cause significant harm to

their users. Whereas in the physical world, consumers may

seek redress for their harm by filing a tort claim against

the manufacturer of the product, such claims originating

in the virtual world are often preempted by Section 230.

Section 230’s content-publisher model has proven

especially problematic in cases where a plaintiff ’s injury

is causally connected to third-party content, but the

defendant’s alleged wrongdoing is not based on a failure

to moderate that content. For example, the Fifth Circuit’s

decision in Doe v. Myspace, one of the first appellate court

cases to address liability in the context of a defective

virtual product, demonstrates the paradigmatic error

courts have and continue to make in assessing these

claims under Section 230. 528 F.3d 413 (5th Cir. 2008).

In that case, the Court considered allegations that the

social media platform MySpace had been negligent in its

failure to implement basic safety features that could have

prevented Doe, then thirteen-years-old, from creating

a profile on the platform through which she was able to

connect with a sexual predator. Id. The Court rejected

Doe’s claim, characterizing it as a “disingenuous” attempt

to circumvent Section 230 and institute liability based on

her individual disapproval of the platform’s “monitoring,

11

screening and deletion” choices, which are activities

generally protected by Section 230. Id. at 420. In so

holding, the Court ignored that the alleged harm stemmed

from Doe’s ability to access the social media platform –

which occurred well before she interacted with any users

– and not from the contents of any correspondence posted

to the website by this predator or any other third party. By

disregarding MySpace’s affirmative conduct – namely, its

failure to design and implement features that would have

prevented such foreseeable harms to minors accessing

their platform – and assuming that Doe sought redress for

some content-derived harm, the Fifth Circuit improperly

foreclosed claimants’ ability to hold online platforms liable

for their role as manufacturers of products.

Many courts have followed suit, dismissing claims

against online platforms for their affirmative design

and system choices reasoning that, regardless of any

negligence or defects or preventable harm to others, online

entities are immune from liability so long as the duty

breached does not involve the creation of content. See, e.g.,

Force, 934 F.3d at 53; Marshall’s Locksmith Serv. Inc. v.

Google, LLC, 925 F.3d 1263 (D.C. Cir. 2019); Stokinger v.

Armslist, LLC, No. 1884CV03236F, 2020 WL 2617168, at

*5 (Mass. Super. Apr. 28, 2020); Herrick v. Grindr, LLC,

306 F. Supp. 3d 579, 590 (S.D.N.Y. 2018), aff ’d, 765 F. App’x

586 (2d Cir. 2019), cert. denied, 140 S. Ct. 221 (2019); Dyroff

v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097–101

(9th Cir. 2019); Backpage.com, 817 F.3d at 21.

In a departure, the Ninth Circuit in Doe v. Internet

Brands, Inc., held that Section 230 did not bar a negligence

claim against the owners of a social networking site for

individuals in the modeling industry for the website’s

12

alleged negligent failure to warn about two individuals

who used the website to lure Doe to a fake audition, where

she was raped. 824 F.3d 846 (9th Cir. 2016). The owners

had obtained information from an offline source about the

third parties’ scheme to target and lure victims through

its platform. Id. In permitting plaintiff ’s claim, the Court

distinguished a remedial measure that may require an

interactive computer service provider to warn its users

of a known risk from the paradigmatic case of Section

230 immunity‒a defamation claim based on content

published by a third-party user. Id. at 853. The Court

explained that Doe’s failure to warn claim “ha[d] nothing

to do with [Defendant’s] efforts, or lack thereof, to edit,

monitor, or remove user-generated content.” Id. at 852.

While the Court conceded that Defendant had acted as

the “publisher or speaker” of user content (Doe’s profile),

a “but-for” cause of her injuries, it nonetheless rejected

the but-for causation requirement as applied to Section

230 preemption, reasoning that “[p]ublishing activity is

a but-for cause of just about everything [Defendant] is

involved in.” The court noted further that “the CDA does

not provide a general immunity against all claims derived

from third-party content. . . . Congress has not provided

an all-purpose get-out-of-jail-free card for businesses

that publish user content on the internet, though any

claims might have a marginal chilling effect on internet

publishing businesses.” Id. at 852–53.

The Ninth Circuit refined the publisher liability

analysis in Lemmon v. Snap, Inc., asserting that whether

a defendant is treated as a publisher or speaker depends

on “the duty the plaintiff alleges.” 995 F.3d 1085, 1091 (9th

Cir. 2021). To that point, the Court added that the duty

alleged in a products liability claim

13

differs markedly from the duties of publishers

as defined in the CDA. Manufacturers have

a specific duty to refrain from designing a

product that poses an unreasonable risk of

injury or harm to consumers. Meanwhile,

entities acting solely as publishers – i.e., those

that review material submitted for publication,

perhaps edit it for style or technical fluency, and

then decide whether to publish it – generally

have no similar duty.

Id. at 1092 (internal citations and quotations omitted).

These Ninth Circuit decisions are instructive as to

the proper analysis of publisher liability under Section

230 in light of its text and history. The key lies in the

careful evaluation of the claimant’s cause of action to

determine if the defendant’s conduct – the alleged source

of harm – goes beyond the entity’s editorial functions.

See Bauer v. Armslist, LLC, 572 F. Supp. 3d 641, 664

(E.D. Wis. 2021) (describing Section 230 as a “definitional

provision” requiring a “fact-based inquiry.”). While an

online platform may be primarily designed for posting

and exchanging content, that fact alone does not sweep

all decisions made by the platform within the scope of

its publishing function. Indeed, “Section 230(c)(1) limits

liability based on the function the defendant performs,

not its identity.” Force, 934 F.3d at 81 (emphasis added).

Simply put, “[w]hen a plaintiff brings a claim that is based

not on the content of the information shown” but rather

on the defendant’s own conduct, “the CDA does not and

should not bar relief.” Id. at 82. See also FTC v. Accusearch

Inc., 570 F.3d 1187, 1204 (Tymkovich, J.) (10th Cir. 2009);

Bauer, 572 F. Supp. 3d at 663–64.

14

This case presents an opportunity for the Court

to clarify that Section 230 does not apply to an online

company’s affirmative conduct and that they are not

entitled to immunity when their actions cause harm to

others, even if third-party content set the plaintiff ’s injury

in motion.

II .T h e Q u e s t io n P r e s e n t e d i s E xc e p t iona l ly

Important Because It Implicates Child Protection

For decades, courts have read Section 230 to shield

the Nation’s largest and most powerful tech companies

from virtually all legal claims. Far from making the

internet safer for children, the prevailing interpretation

of Section 230 allows social media platforms to eschew

their responsibilities to consumers and then to sidestep

accountability when their products cause serious harm.

The near universal use of social media by today’s

youth underscores the urgency with which this Court’s

intervention is needed. Returning Section 230 to its

statutory text is critical to safeguarding children online

and to ensuring that past victims have access to justice.

A.

The Prevailing Interpretation of Section 230

Undermines Its Predominant Purpose to

Provide Minors with a Safe Online Experience

Twenty-eight years ago, the argument that internet

service providers operate exclusively as passive conduits

for third-party content and thus should not be liable for

harm caused by the activities on their platforms may

have been reasonable. Today, companies such as Snapchat

operate some of the most technologically advanced

websites in the world. Social media companies are not only

15

able to manipulate content and exploit user behaviors to

drive up profits, but they affirmatively exercise that ability.

See, e.g., Devi Sridhar, Social media could be as harmful

to children as smoking or gambling – why is this allowed?

The Guardian (Jul. 4, 2023), https://www.theguardian.

com/commentisfree/2023/jul/04/smoking-gamblingchildren-social-media-apps-snapchat-health-regulation

(revealing that ninety-nine percent of Snapchat’s revenue

is generated through ad-driven user engagement). Indeed,

“[m]any . . . successful internet companies . . . design

their applications to collect, analyze, sort, reconfigure,

and repurpose user data for their own commercial

reasons, unrelated to the original interest in publishing

material or connecting users. These developments belie

any suggestion that online intermediaries are merely

conduits of user information anymore.” Olivier Sylvain,

Intermediary Design Duties, 50 Conn. L. Rev. 203, 218

(2018). See also 164 Cong. Rec. S1849-09 (daily ed. Mar. 21,

2018) (statement of Sen. Wyden). Social media companies

like Snapchat have propelled much of the harmful content

on their platforms to optimize user engagement, often with

little regard to the collateral consequences. Protecting

Youth Mental Health, U.S. Surgeon General’s A dvisory

(2021), https://www.hhs.gov/sites/default/files/surgeongeneral-youth-mental-health-advisory.pdf.

For example, in 2017, a British teenager named

Molly Russel took her own life after months of viewing

pro-suicide and self-harm content recommended to her

through social media. Adam Satariano, British Ruling

Pins Blame on Social Media for Teenager’s Suicide,

The New York Times (Oct. 1, 2022), https://www.nytimes.

com/2022/10/01/ business/instagram-suicide-rulingbritain.html. Following an intensive investigation, the

16

Senior Coroner for the Northern District of Greater

London issued a landmark ruling, that the teen “died from

an act of self-harm while suffering from depression and the

negative effects of on-line content.” Regulation 28 Report

to Prevent Future Deaths, North London Coroner’s

Service (Oct. 13, 2022), https://www.judiciary.uk/wpcontent/uploads/2022/10/Molly-Russell-Preventionof-future-deaths-report-2022- 0315_Published.pdf.

Specifically, the Coroner found that the platforms

algorithmic tool fueled binge periods during which the

teen was fed a stream of increasingly harmful content

which ultimately “contributed to her death in a more than

minimal way.” Id.; Dan Milmo, Molly Russell inquest

must lead to action on internet dangers, says coroner,

The Guardian (Sept. 29, 2022) https://www.theguardian.

com/technology/2022/sep/29/molly-russell-inquest-mustlead-to-action-on-internet-dangers-says-coroner. As news

of the teen’s death spread, thirty additional families came

forward alleging that social media played a role in their

children’s suicides as well. See Faith Ridler, THIRTY

Families Blame Social Media Firms for Their Roles

in Children’s Suicides as it Emerges Pinterest Sent a

Personalised Email to Molly Russell’s Account with

Self-Harm Images AFTER She Took Her Own Life, Daily

M ail (Jan. 27, 2019), https://www.dailymail.co.uk/news/

article-6636807/Now-30-families-blame-social-mediafirms-roles-childrens-suicides.html.

Similarly, in 2019, the public learned that YouTube

had been recommending compromising videos of young

children, thus enabling a “pedophilia ring” to proliferate

on its site. Ryan Broderick, YouTube’s Latest Child

Exploitation Controversy Has Kick-Started A War Over

How to Fix The Platform, Buzzfeed News (Feb. 22, 2019),

17

https://www.buzzfeednews.com/article/ryanhatesthis/

youtube-child-sexual-exploitation-creators-watson; K.G

Orphanides, The Paedophile Scandal Shows YouTube is

Broken. Only Radical Change Can Fix It, Wired (Feb.

23, 2019), https://w w w.wired.co.uk/article/youtubepaedophiles-boycott-algorithm-change.

Overwhelming scientific research has also evidenced

the significant, negative effects that social media has on

youth mental health. Social Media and Youth Mental

Health: the U.S. Surgeon General’s Advisory, U.S. Dep’t

Health & Hum. Servs . (May 23, 2023). For example,

greater social media consumption among adolescents is

associated with a range of adverse outcomes including

poor sleep habits, body dissatisfaction, low self-esteem,

disordered eating behaviors, online harassment, and

depressive symptoms, to name a few. Id. See also G.

Wells, J. Horwitz, and D. Seetharaman, Facebook Knows

Instagram is Toxic for Teen Girls, Documents Show, The

Wall Street Journal (Sep. 14, 2021), https://www.wsj.

com/articles/facebook-knows-instagram-is-toxic-for-teengirls-company-documents-show-11631620739.

These stories illustrate that social media companies

are aware of their products’ capabilities to manipulate

human behavior both on and offline, and of the harms

that have befallen their users as a result. Yet, these

companies still refuse to take responsibility by, for

example, marshaling the tools already at their disposal

to prevent illicit contact between children and adults on

their platforms.

With ninety-five percent of today’s children aged

thirteen to seventeen using social media, the potential

18

harm posed by these platforms is limitless absent

meaningful, legal accountability. Social Media and Youth

Mental Health: the U.S. Surgeon General’s Advisory, U.S.

Dep’t Health & Hum. Servs. (May 23, 2023).

B. The Sweeping Immunity Afforded to Social

Media Companies Under Section 230 Has

Facilitated an Explosion of Online Exploitation

and Abuse

The incentive Congress sought to provide by enacting

Section 230 has been twisted such that social media

companies stand to gain significant profits from hosting

and distributing illicit content on their platforms. The

tragic result has been an explosion of growth in the online

marketplace for CSAM. At any given time, there are at

least one million child sex offenders searching for CSAM

online. Eur. Parliamentary Rsch. Serv., Curbing the

surge in online child abuse: The dual role of digital

technology in fighting and facilitating its proliferation

2 (Nov. 2020), https://www.europarl.europa.eu/RegData/

etudes/BRIE/2020/659360/EPRS_BRI(2020)659360_

EN.pdf. In the last fifteen years alone, online exploitation

and abuse of children has increased by 422 percent.

U.S. Sent ’g C omm ’n, F ederal Sentencing of Child

Pornography: Production Offenses 3 (2021), https://www.

ussc.gov/sites/default/files/pdf/research-and-publications/

research-publications/2021/20211013_Production-CP.pdf.

Millions of individual users consume more than fifteen

million child sexual abuse images in a market currently

valued between three and twenty billion dollars annually.

Michael H. Keller & Gabriel J.X. Dance, The Internet Is

Overrun With Images of Child Sexual Abuse. What Went

Wrong?, NYTimes.com (Sep. 2019), available at https://

19

www.nytimes.com/interactive/2019/09/28/us/child-sexabuse.html?msclkid=531b2a24a55511ec9733999ed45d4

0bd.

These materials not only exist on the dark roads of the

internet, but also on mainstream platforms as well. For

example, Google returns 920 million videos on a search

for ‘young porn,’ and Pornhub has facilitated and profited

from the distribution of thousands of videos with violent

titles such as “Screaming Teen” and “Degraded Teen.”

Nicolas Kristof, The Children of Pornhub, NY Times (Dec.

4, 2020), https://www.nytimes.com/2020/12/04/opinion/

sunday/pornhub-rape-trafficking.html.

Relatedly, perpetrators increasingly rely on popular

social media platforms to target and groom minors to

engage in sexually explicit conduct online. In fact, Snapchat

is one of the most – if not the most – frequently used

platforms in grooming crimes committed against children

online. Charles Hymas, Snapchat accounts for nearly half

of recorded online grooming crimes against children, The

Telegraph (Aug. 15, 2023), https://www.telegraph.co.uk/

news/2023/08/15/snapchat-half-online-grooming-crimesagainst-children/#:~:text=Snapchat%20accounted%20

for%20nearly%20half,data%20obtained%20by%20

the%20NSPCC; Responding to Online Threats: Minors’

Perspectives on Disclosing, Reporting, and Blocking

in 2021, Thorn (Feb. 2023), https://info.thorn.org/hubfs/

Research/Thorn_ROT_Monitoring_2021.pdf. A simple

Google search returns countless news stories exposing

incidents of grooming and sexual abuse on Snapchat,

with some tragically resulting in the minor’s death.

See, e.g., Mike Martindale, Ex-hockey coach sentenced

for sending player nude pics, The Detroit News (Oct.

20

15, 2015), https://w w w.detroitnews.com/story/news/

local/oakland-county/2015/10/01/ex-hockey-coach-novisentenced-sending-nude-photos-player/73168960/; Julie

Jargon, Teen Boys are Falling for a Snapchat Nude-Photo

Scam, Here’s How to Avoid It, The Wall Street Journal

(Nov. 18, 2023), https://www.wsj.com/tech/personal-tech/

teen-boys-are-falling-for-a-snapchat-nude-photo-scamheres-how-to-avoid-it-97a830c8.

For forty years, this Court has recognized the grave

“physiological, emotional, and mental” injuries suffered

by victims of child sexual abuse. New York v. Ferber, 458

U.S. 747, 758 (1982). The trauma stemming from child

sexual abuse takes a significant toll on victims’ overall

health, increasing the risk not only for depression,

anxiety, substance abuse, post-traumatic stress disorder,

and suicidal ideation, but also physical ailments such as

high blood pressure and chronic illness. See Centers

for D i se a se C on t rol a n d P r e v en t ion , N at iona l

Center for Injury Prevention and Control, Division

of Violence Prevention, Preventing Sexual Violence

(last reviewed by the CDC on Jan. 17, 2022), available at

https://www.cdc.gov/violenceprevention/sexualviolence/

fastfact.html?CDC_AA_refVal=https%3A%2F%2Fwww.

cdc.gov %2F v iolenceprevent ion%2Fsex ua lv iolenc

e%2Fconsequences.html. The paradigm shift from

tangible to digital CSAM has only exacerbated these

effects. Von Weiler, J., Haardt-Becker, A., & Schulte, S.

Care and treatment of child victims of child pornographic

exploitation (CPE) in Germany, 16 J. of Sexual Aggression

211, 216 (2010); National Center for Missing & Exploited

Children, Child Pornography Possessors A rrested in

Internet-Related Crimes: Findings from the National

Juvenile Online Victimization Study, available at http://

21

us.missingkids.com/en_US/publications/NC144.pdf; U.S.

Dep ’t of Justice, T he National Strategy For Child

Exploitation A nd Prevention A nd Interdiction, 11 at

D-12 (2010), available at http://www.justice.gov/psc/docs/

natstrategyreport.pdf; Leonard, M.M., ‘I did what I was

directed to do but he didn’t touch me’: The impact of being

a victim of internet offending, 16 J. of Sexual Aggression

249, 254 (2010). While perpetrators of online abuse are

responsible for resulting harm to children, so too are

online platforms that remain complicit in fostering the

spread of abuse. As this Court has recognized, “everyone

who reproduces, distributes, or possesses the images

of the victim’s abuse . . . plays a part in sustaining and

aggravating this tragedy.” Paroline v. United States, 572

U.S. 434, 457 (2014). Congress, legislating against the

backdrop of Ferber and its progeny, never intended to

immunize defendants like Snapchat for their role in the

modern CSAM marketplace.

C.

The Prevailing Interpretation of Section

230 Has Left Victims of Online Abuse with

No Leverage to Hold Online Platforms

Accountable and Seek Redress for their Harm

In the physical world, when a plaintiff is harmed as

a result of a company’s tortious conduct, they may seek

redress by filing a lawsuit against the wrongdoer. Whereas

courts generally consider elements like negligence,

foreseeability, and intent where the allegations involve

real-world harm, they have largely failed to do the same

when that harm occurs online. As a result, when victims

of online harm seek redress, they may find their claims

dismissed without the benefit of any fact-intensive inquiry

into the company’s functional role in the harm. Dismissal

22

of such cases at the pre-discovery stage all but foreclose on

victims’ ability to prove that the defendants operated with

a culpable mens rea. Indeed, courts have acknowledged

the dangers of granting a motion to dismiss based on the

CDA’s limited immunity defense. See, e.g., CYBERsitter,

LLC v. Google, Inc., 905 F. Supp. 2d 1080, 1086 (C.D. Cal.

2012). In fact, Congress has specifically acknowledged the

importance of discovery in cases of online exploitation,

trafficking, and abuse, observing that internet companies

believed they “would be able to win again in court and

deny us our opportunity to look at the documents and to

look at the underlying evidence that one should always

look at in an investigation.” 164 Cong. Rec. S 1827, 1830

(Sen. McCaskill).

Without the ability to engage in discovery, there

will be no serious consideration of what companies like

Snapchat knew about the likelihood of harm to children

who access their platforms. This is especially important

given the sophisticated algorithms implemented by

online platforms that prioritize user engagement and

profitability, often at the expense of children’s safety. See,

e.g., Wells, G., Horwitz, J., & Seetharaman, D., Facebook

Knows Instagram is Toxic for Teen Girls, Company

Documents Show, The Wall Street Journal (Sep. 14,

2021), https://www.wsj.com/articles/facebook-knowsinstagram-is-toxic-for-teen-girls-company-documentsshow-11631620739?mod=hp_lead_pos7; Craig Timberg,

YouTube Says It Bans Preteens But It’s Still Delivering

Troubling Content to Young Children, The Washington

Post (Mar. 14, 2019), https://www.washingtonpost.com/

technology/2019/03/14/youtube-says-it-bans-preteensits-site-its-still-delivering-troubling-content-youngchildren/. The decision to forgo discovery not only prevents

23

victims from seeking any meaningful redress, but it also

prevents online companies from learning about potentially

dangerous features on their platforms, and thus hinders

discovery of new technologies that could increase user

safety and promote growth.

By cutting off victims’ opportunity to gather evidence

regarding tech company practices, courts have thwarted

the CDA’s child protection purpose and denied countless

victims the access to justice Congress so plainly promised.

Now the opportunity to correct this injustice is before

this Court. As Justice Thomas explains, “[p]aring back

the sweeping immunity courts have read into §230

would not necessarily render defendants liable for online

misconduct. It simply would give plaintiffs a chance

to raise their claims in the first place. Plaintiffs still

must prove the merits of their cases, and some claims

will undoubtedly fail.” Malwarebytes, 141 S. Ct. at 18

(Thomas, J., statement respecting the denial of certiorari).

Restoring the scope of Section 230 to its statutory text

will advance Congress’s goal of ensuring accountability for

companies that recklessly gamble with users’ lives. See,

e.g., United States v. Williams, 444 F.3d 1286, 1290 (11th

Cir. 2006) (“Our concern is not confined to the immediate

abuse of the children depicted in these images but is also

to enlargement of the market and the universe of this

deviant conduct that, in turn, results in more exploitation

and abuse of children.”).

24

CONCLUSION

Social media companies must be held accountable

for the harm they are exacting on children through their

own misconduct. For the reasons stated above, this Court

should grant the Petition for Writ of Certiorari so that it

may properly define the scope of Section 230 consistent

with its text and underlying child protection goal.

Respectfully Submitted,

Prof. Marci A. Hamilton, Esq.

Founder & CEO

Counsel of Record

Jessica Schidlow, Esq.

Legal Director

Carina Nixon, Esq.

Senior Staff Attorney

Jessica Downes, Esq.

Staff Attorney

Child USA

3508 Market Street, Suite 202

Philadelphia, PA 19104

(215) 539-1906

marcih@sas.upenn.edu

Counsel for Amici Curiae

Peter Gentala, Esq.

NCOSE

1201 F St NW, Suite 200

Washington, DC 20004

pgentala@ncoselaw.org