NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 3 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE #1; JOHN DOE #2, Nos. 22-15103
Plaintiffs-Appellees, D.C. No. 3:21-cv-00485-JCS
v.
MEMORANDUM*
TWITTER, INC.,
Defendant-Appellant.
JOHN DOE #1; JOHN DOE #2, No. 22-15104
Plaintiffs-Appellants, D.C. No. 3:21-cv-00485-JCS
v.
TWITTER, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Joseph C. Spero, Magistrate Judge, Presiding
Argued and Submitted April 20, 2023
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
Before: VANDYKE and SANCHEZ, Circuit Judges, and S. MURPHY,** District
Judge.
On interlocutory cross-appeals, Plaintiffs John Doe #1 and John Doe #2 and
Defendant Twitter, Inc. challenge the district court’s order granting in part and
denying in part Twitter’s motion to dismiss the Plaintiffs’ complaint. Specifically,
Plaintiffs challenge the district court’s dismissal of Counts 1 and 4 of their
complaint. Count 1 asserts that Twitter is liable under the Trafficking Victims
Protection Act (TVPRA), 18 U.S.C. §§ 1591(a)(1), 1595(a), for directly violating
the TVPRA’s prohibition on sex trafficking by providing, obtaining, or maintaining
child sexual abuse material (CSAM) depicting them on its platform. Count 4 asserts
that Twitter is liable for possessing, receiving, maintaining, and distributing child
pornography depicting them in violation of 18 U.S.C. §§ 2252A, 2255. Defendant
challenges the denial of its motion to dismiss Count 2 of the complaint. Count 2
asserts that Twitter is liable under the TVPRA, 18 U.S.C. §§ 1591(a)(2), 1595(a),
for benefitting from third-party trafficking activities that its platform allegedly
facilitated. We have jurisdiction under 28 U.S.C. § 1292(b), and we affirm the
dismissal of Counts 1 and 4 and reverse the district court’s denial of dismissal of
Count 2. We assume familiarity with the underlying facts and arguments in these
**
The Honorable Stephen Joseph Murphy, III, United States District Judge for the
Eastern District of Michigan, sitting by designation.
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cross-appeals.
“We review de novo both a district court order dismissing a plaintiff’s claims
pursuant to Federal Rule of Civil Procedure 12(b)(6) and questions of statutory
interpretation.” Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1096 (9th
Cir. 2019). Only a complaint that states a plausible claim for relief may survive a
motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Section 230 of the
Communications Decency Act states that “[n]o provider or user of an interactive
computer service shall be treated as the publisher or speaker of any information
provided by another information content provider.” 47 U.S.C. § 230(c)(1). Our
court has held that section 230 “provides broad immunity” for claims against
interactive computer service providers “for publishing content provided primarily
by third parties.” Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir.
2003). And “any activity that can be boiled down to deciding whether to exclude
material that third parties seek to post online is perforce immune under section 230.”
Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d
1157, 1170–71 (9th Cir. 2008).
The district court granted Twitter’s motion for certification of an interlocutory
appeal as to Count 2. Specifically, Twitter sought certification of the following two
questions:
(1) whether the immunity carve-out in Section 230(e)(5)(A) requires
that a plaintiff plead a violation of Section 1591; and
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(2) whether “participation in a venture” under Section 1591(a)(2)
requires that a defendant have a “continuous business relationship”
with the traffickers in the form of business dealings or a monetary
relationship.
With respect to Count 2, the legal standard applicable to that issue has now
been decided by Jane Does 1–6 v. Reddit, Inc., 51 F.4th 1137 (9th Cir. 2022),
petition for cert. filed, --- U.S.L.W. --- (U.S. Jan. 25, 2023) (No. 22-695). Reddit
answered the first certified question in the affirmative: “[F]or a plaintiff to invoke
FOSTA’s immunity exception, she must plausibly allege that the website’s own
conduct violated section 1591.” 51 F.4th at 1141. Reddit answered the second
question in the negative: “In a sex trafficking beneficiary suit against a
defendant-website, the most important component is the defendant website’s own
conduct—its ‘participation in the venture.’” Id. at 1142. “A complaint against a
website that merely alleges trafficking by the website’s users—without the
participation of the website—would not survive.” Id. The term “‘[p]articipation in
a venture,’ in turn, is defined as ‘knowingly assisting, supporting, or facilitating’ sex
trafficking activities. [18 U.S.C.] § 1591(e)(4). Accordingly, establishing criminal
liability requires that a defendant knowingly benefit from knowingly participating
in child sex trafficking.” Id. at 1145. Reddit therefore requires a more active degree
of “participation in the venture” than a “continuous business relationship” between
a platform and its users. Because these questions certified for interlocutory appeal
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are controlled by Reddit, the district court’s contrary holding is reversed.
Regarding Count 1, the district court correctly ruled that Plaintiffs failed to
state a claim for direct sex trafficking liability under the TVPRA, 18 U.S.C.
§§ 1591(a)(1) and 1595(a). Section 1591(a)(1) creates a direct liability claim for
“[w]hoever knowingly … recruits, entices, harbors, transports, provides, obtains,
advertises, maintains, patronizes, or solicits by any means a person.” 18 U.S.C.
§ 1591(a)(1) (emphasis added).1 Because Plaintiffs nowhere allege in their
complaint that Twitter “provided,” “obtained,” or “maintained” a person, the district
court correctly concluded that Twitter’s alleged conduct relates only to CSAM
depicting Plaintiffs, not to their persons (as required to implicate a direct violation
of the TVPRA).
Finally, as to Count 4, the district court correctly ruled that section 230
precluded Plaintiffs from stating a viable claim for possession and distribution of
child pornography under 18 U.S.C. §§ 2252A and 2255. Because the complaint
targets “activity that can be boiled down to deciding whether to exclude material that
third parties seek to post online,” such activity “is perforce immune under section
230.” Roommates.Com, 521 F.3d at 1170–71. And although section 230(e)(1)
1
Plaintiffs expressly disclaimed before the district court that Twitter “advertised”
them (or CSAM content depicting them) in violation of section 1591(a)(1), so they
are estopped from alleging to the contrary on appeal. See United States v. Ibrahim,
522 F.3d 1003, 1009 (9th Cir. 2008).
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exempts from immunity the enforcement of criminal laws under Chapter 110 of Title
18 (which contains sections 2252A and 2255), our court has “consistently held that
§ 230(e)(1)’s limitation on § 230 immunity extends only to criminal prosecutions,
and not to civil actions based on criminal statutes.” Gonzalez v. Google, LLC, 2
F.4th 871, 890 (9th Cir. 2021), cert. granted, 143 S. Ct. 80–81 (Mem) (U.S. Oct 3,
2022) (Nos. 21-1333, 21-1496).2
Accordingly, the district court’s order is AFFIRMED as to Counts 1 and 4,
but because the holding of the district court regarding Count 2 is contrary to our
court’s Reddit decision, the order is REVERSED with respect to Count 2 and
REMANDED for further proceedings to be conducted in a manner consistent with
this court’s Reddit decision.
2
We recognize that a petition for certiorari in Reddit is pending, and that the
Supreme Court also has before it two related cases, the disposition of which could
affect our court’s Reddit precedent. See Gonzalez v. Google LLC, No. 21-1333
(argued Feb. 21, 2023), and Twitter, Inc. v. Taamneh, No. 21-1496 (argued Feb. 22,
2023). To the extent developments in any of those cases might affect our court’s
holding in Reddit, the district court is well-equipped to address such arguments in
the first instance.
6