Adobe Stock Our country is facing a critical and urgent question: Do we care if mainstream social media platforms knowingly distribute child sexual abuse material?
Our children face unprecedented danger online, as 13-year-old John Doe discovered after falling victim to an online solicitation from a pretty girl on Snapchat. The pretty girl was not real, but instead a predator who elicited child sexual abuse material from John and his friend.
Much to John’s horror, that material eventually found its way onto Twitter (now X). The post was also shared among John’s peers at school, humiliating him to the point of contemplating suicide. Despite this, John was hopeful that he could get the abuse material taken down. He reached out to Twitter with identification to prove that he and his friend were minors and that the material should be removed immediately.
But when Twitter was alerted to this fact and the ages of John and his friend, Twitter refused to remove the illegal material, saying, “We’ve reviewed the content, and didn’t find a violation of our policies, so no action will be taken at this time.”
Twitter continued to promote and profit from the sexual abuse of these young teens. The material received more than 167,000 views before it was finally removed at the request of a family friend who worked in federal law enforcement. But there has been lasting devastation and trauma. No child should have to face this situation.
John’s family rightfully sued Twitter. The case made its way through the courts. Ultimately, the 9th Circuit Court ruled that Section 230 provided Twitter with legal immunity for knowingly possessing and distributing child sexual abuse material and for knowingly benefitting from a sex-trafficking venture.
It was quite unbelievable that the 9th Circuit Court ruling gave Twitter immunity and even shielded Twitter from claims that it knowingly profited from sex trafficking, so we appealed the case to the U.S. Supreme Court. The petition was supported by extraordinary amicus briefs from voices including the National Center for Missing and Exploited Children, the Tim Tebow Foundation, Sen. Josh Hawley (R-Mo.), 17 state attorneys general and ChildUSA. But in an even more shocking turn, the court declined to review this case. And it has yet to take a case involving Big Tech’s misguided Section 230 immunity.
The ramifications are sobering. In practice, the Supreme Court decision not to take this case effectively continues to provide online platforms with broad civil immunity to distribute child pornography and sexual abuse material knowingly.
The decision now radically disincentivizes removal of such materials from tech platforms, as the risk of the tech platform being held accountable is minuscule. Mainstream tech platforms now appear insulated from civil liability, leaving the extraordinarily rare prospect of criminal prosecution as virtually the only remaining check — that is, unless Congress acts.
Criminal prosecution of major mainstream tech platforms for distributing child sexual abuse material is virtually nonexistent. When is the last time the Department of Justice prosecuted a company like Facebook, Snapchat, X, or similar companies? Never. Big Tech’s incentives to meaningfully combat child sexual abuse material are gutted.
In fact, in what appears to be the only hope for justice, accountability, and prevention of future exploitation, Congress must clarify that it did not intend for tech companies to have legal immunity for harms they facilitate on their platforms or their own criminal conduct in knowingly possessing and distributing child pornography.
Congress should sunset Section 230 and pass the strong Senate version of the Kids Online Safety Act with the “Duty of Care” provision, among other actions, to demand accountability from social media companies and create meaningful protections for children online.
As this case shows, Section 230 continues to stand in the way of justice for victims of sexual abuse and exploitation, despite the fact that tech platforms have knowingly facilitated these abuses. Companies are incentivized to mine our data to provide us with ads for products before we even search for them, and they have perfected that science. Yet somehow, child sexual abuse material online is an ever-worsening problem with no signs of slowing down.
Does our country really allow corporations to commit federal crimes, like knowingly distributing child sexual abuse material, without consequences? If this can happen to our clients without accountability, then every parent and every American should be asking what protections children truly have online today.
No company, online or otherwise, should be above the law. Children — not tech companies — should have protection from harm. Congress must act to make it so.
Benjamin Bull is General Counsel for the National Center on Sexual Exploitation and legal counsel for the plaintiffs.
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