Existing law grants a cause of action to a depicted individual, as defined, against a person who either (1) creates and intentionally discloses sexually explicit material if the person knows or reasonably should have known the depicted individual did not consent to its creation or disclosure or (2) intentionally discloses sexually explicit material that the person did not create if the person knows the depicted individual did not consent to its creation. Existing law also specifies that a victim of human trafficking may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief.

Existing federal law grants a cause of action to a person who, while a minor, was a victim of a violation of specified federal crimes and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor.

This bill would allow a person who is depicted in certain sexual images when the person was less than 18 years of age to bring a civil action for specified damages and relief against a person or entity that distributes that material, as specified.The specified. The bill would require, in addition to any other damages awarded to a prevailing plaintiff, statutory damages of $200,000 to be paid by the defendant for failing to cease distribution of the material within 2 business days after notice of claimed infringement of these provisions was received by the defendant.

The bill would require the operator of an online service or internet website that is available in California to list an agent for notification of claimed violation of these provisions, as specified. The bill would also require the operator to create a method to contact that agent for the purpose of reporting the erroneous removal of content, as specified. The bill would further require the operator to destroy material subject to these provisions if the operator has confirmed that any investigation related to that material has been completed.

The bill would state that its provisions are severable.

Existing law grants a cause of action to a depicted individual, as defined, against a person who either (1) creates and intentionally discloses sexually explicit material if the person knows or reasonably should have known the depicted individual did not consent to its creation or disclosure or (2) intentionally discloses sexually explicit material that the person did not create if the person knows the depicted individual did not consent to its creation. Existing law also specifies that a victim of human trafficking may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief.

Existing federal law grants a cause of action to a person who, while a minor, was a victim of a violation of specified federal crimes and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor.

This bill would allow a person who is depicted in certain sexual images when the person was less than 18 years of age to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, specified statutory damages, and any other appropriate relief, specified damages and relief against a person or entity that distributes, including through electronic distribution, actionable distributes that material, unless otherwise as specified.

The bill would authorize, require, in addition to any other damages awarded to a prevailing plaintiff, statutory damages of $200,000 to be assessed and paid by the defendant for failing to cease distribution of, of the material within 2 business days after notice of claimed infringement of these provisions was received by the defendant.

The bill would require a person or entity that operates the operator of an online service or internet website that is available in California to list, in a location available to the public via the service or on the internet website, list an agent for notification of claimed violation of these provisions. provisions, as specified. The bill would also require the person or entity operator to create a method to contact that agent for the purpose of reporting the erroneous removal of content, as specified. The bill would further require the person or entity operator to destroy an item of actionable material subject to these provisions if the operator has confirmed that any investigation related to that actionable material has been completed.

The bill, in addition to the private right of action, would require the Attorney General to enforce these provisions against repeated violators, including, among other actions, by levying fines commensurate with the statutory damages described above payable to the person in the actionable material. depicted.

The bill would state that its provisions are severable.

Existing law grants a cause of action to a depicted individual, as defined, against a person who either (1) creates and intentionally discloses sexually explicit material if the person knows or reasonably should have known the depicted individual did not consent to its creation or disclosure or (2) intentionally discloses sexually explicit material that the person did not create if the person knows the depicted individual did not consent to its creation. Existing law also specifies that a victim of human trafficking may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief.

Existing federal law grants a cause of action to a person who, while a minor, was a victim of a violation of specified federal crimes and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor.

This bill would allow a person to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, specified statutory damages, and any other appropriate relief, against a person or entity that distributes, including through electronic distribution, actionable material, unless otherwise specified.

This bill would define actionable material as a moving or still photograph in any technological form, regardless of whether it has been altered, of that is (1) an illicit picture, as defined, of a person who was less than 18 years of age at the time it was created or their identifiable likeness, in which they are the subject of obscene material, as defined, or (2) an image or depiction of a person who, when less than 18 years of age, was a victim of a violation of the above-described specified federal crimes, and would have the above-described federal cause of action available to them. them due, in whole or in part, to that image or depiction.

This bill would authorize, in addition to any other damages awarded to a prevailing plaintiff, statutory damages of $200,000 to be assessed and paid by the defendant for failing to cease distribution of, the material within 2 business days after notice of claimed infringement of these provisions was received by the defendant.

This bill would require a person or entity that operates an online service or internet website that is available in California to list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of these provisions. The bill would also require the person or entity to create a method to contact that agent for the purpose of reporting content, as specified. The bill would further require the person or entity to destroy an item of actionable material if the operator has confirmed that any investigation related to that actionable material has been completed.

This bill, in addition to the private right of action, would require the Attorney General to enforce these provisions against repeated violators, including, among other actions, by levying fines commensurate with the statutory damages described above payable to the person in the actionable material.

This bill would state that its provisions are severable.

Existing law creates a private right of action against a person who intentionally distributes a photograph or recorded image of another, without the other persons consent, if certain conditions are met, including if the person who distributed the material knew, or reasonably should have known, that the other person had a reasonable expectation that the material would remain private, and if the material exposes the intimate body parts, as defined, of the other person or shows that person engaged in specified sexual acts.

This bill would make nonsubstantive changes to that provision.

Date of Hearing: August 16, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

SBPCA Bill Id:SB 646

Author:(Cortese) – As Amended Ver:June 21, 2023

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill creates a civil cause of action that allows any person, including the parent or guardian of an affected minor, to bring a civil action in court against a person or entity that distributes child sexual assault material (CSAM) depicting the person filing suit. If a distributing person or entity removes the actionable material within two days after being notified about it, the distributing person or entity is no longer subject to civil liability or damages.

FISCAL EFFECT:

Costs (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount to the courts to adjudicate the civil actions authorized by this bill. According to the bill’s findings and declarations, tens of millions of potentially actionable illicit images have been identified on social media platforms in recent years. Although presumably petitions will not be filed in California about each of these images, this speaks to the potential magnitude of litigation that may result from this bill. Actual costs will depend on the number of petitions filed, and the amount of court time needed to adjudicate each case. Some actions may take minimal court time to resolve; others may involve complicated questions of fact that require more significant court involvement. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The 2023-24 budget includes $105 million from the General Fund to backfill declining revenue to the Trial Court Trust Fund.

COMMENTS:

1. Purpose. According to the author:

This bill seeks to provide victims the same standing in state court that Masha’s law gives them in federal court. Any person or entity who transmits [child sexual assault material] is liable to be sued for damages under SB 646. SB 646 also requires that platforms list an agent who will be responsible for fielding requests to remove content. If the platform does not act within two business days, they will be liable to the civil remedies listed in Masha’s law. The platform must also create a method for contacting that agent. Platforms already are using hash values to locate and remove such content.

1. Background. CSAM (also called child pornography) refers to content that captures the sexual abuse of children, including photographs and videos. CSAM has proliferated through the internet in recent years, including on social media platforms. In 2022, the National Center for Missing and Exploited Children received more than 32 million reports of online child sexual exploitation. More than 99.5% of those reports pertained to the possession, manufacture, or distribution of CSAM. As noted below, there are several bills this session that seek to curb the spread of CSAM on social media. In 2005, Congress created federal civil remedies for victims of CSAM and online exploitation, known as Masha’s Law.

This bill allows a person depicted in CSAM, or their parent or guardian if the depicted person is still a minor, to file a civil lawsuit against any person or entity that distributes the CSAM. In addition to allowing for recovery of actual damages, compensatory damages, punitive damages, and attorney’s fees and costs, the bill would require a court to grant a prevailing plaintiff $200,000 in statutory damages if the person or entity who distributes the material fails to remove the content within two days of receiving notice.

As discussed in detail in the analysis of this bill by the Assembly Judiciary Committee, there are concerns that, if enacted, this bill would be preempted by federal law. Specifically, Section 230 of the federal Communications Decency Act prohibits a provider or user of an interactive computer service from being treated as the publisher of information posted on the service. This federal law may also preclude a state from imposing civil liability on social media companies for third-party content posted and distributed on their platforms, even CSAM. This is an area of the law that is uncertain, evolving, and very actively litigated. If chaptered, the cause of action created by this bill will almost certainly be challenged in court.

1. Related Legislation. AB 1394 (Wicks) requires social media platforms to provide a mechanism through which users can report CSAM and creates a civil cause of action for victims of commercial sexual exploitation to sue social media platforms for features that were a substantial factor in causing their exploitation. AB 1394 is pending in the Senate Appropriations Committee.

SB 558 (Rubio), among other provisions, expands the civil childhood sexual assault cause of action to include acts relating to the creation and distribution of CSAM. SB 558 is pending in this committee.

SB 680 (Skinner) creates a civil cause of action against a social media platform that uses a design, algorithm, practice, affordance, or feature that the platform knows or should have known causes child users to experience specified harms. SB 680 is pending in this committee.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: June 20, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

SBPCA Bill Id:SB 646

Author:(Cortese) – As Amended Ver:April 27, 2023

As Proposed to be Amended

SENATE VOTE: 39-0

SUBJECT: CIVIL LAW: PERSONAL RIGHTS: ONLINE SEX TRAFFICKING: SEXUAL PHOTOGRAPHS

KEY ISSUE: SHOULD INDIVIDUALS WHO ARE VICTIMS OF CHILD SEXUAL ABUSE MATERIAL BE AUTHORIZED TO BRING A CIVIL ACTION AGAINST A PERSON OR ENTITY WHO DISTRIBUTES THE MATERIAL, including distribution that is online and on social media platforms?

SYNOPSIS

Child sexual abuse material (CSAM) refers to content, including pictures and videos, which capture the sexual abuse of children. CSAM is deplorable and yet tragically prevalent throughout social media. In 2021, the National Center for Missing and Exploited Children (NCMEC) estimated that over 29 million reports of suspected child sexual exploitation were reported by online platforms. Those 29 million reports included nearly 85 million individual images and videos of CSAM.

This bill adds to the chorus of voices calling for accountability in this space, and proposes to address the scourge of CSAM on social media platforms by authorizing a cause of action for a person who is depicted in “actionable material,” as defined, against a person or entity who distributes the material. The author also proposes to amend the bill to remove language referencing the Attorney General’s enforcement authority, discussed in further detail in the COMMENTS section. The amendments are incorporated into the summary, below.

This bill is sponsored by the Soaring Institute, and is supported by the Children’s Advocacy Institute, Child USA, the California Catholic Conferences, and the Consumer Attorneys of California. It is opposed by a coalition of technology industry advocates including TechNet, the California Chamber of Commerce, and Oakland Privacy.

SUMMARY: Imposes civil liability for the distribution of specified forms of child sexual abuse material (CSAM). Specifically, this bill:

1. Makes various findings and declarations regarding the development of child sexual abuse material (CSAM) online and on social media platforms.
2. Defines the following for the purpose of this bill:
   1. “Actionable material” means a moving or still photograph in any technological form, regardless of whether it has been altered, that is either of the following:
      1. An illicit picture of a person who was less than 18 years of age at the time the photograph was created, or their identifiable likeness.
      2. An image or depiction of a person who, when less than 18 years of age, was a victim of a violation of specified sections of Title 18 of the United States Code, and would have a cause of action available to them under Section 2255 of Title 18 of the United States Code due, in whole or in part, to that image or depiction.
   2. “Electronic distribution” means a transmission or sharing by electronic means including, but not limited to, transmission, posting for public view, or sharing via an internet website, platform, application, peer-to-peer file sharing, or other online mechanism.
   3. “Illicit picture” means an image of the intimate body part or parts of an identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates.
3. Authorizes a person who is depicted in actionable material when the person was less than 18 years of age to bring a civil action against a person or entity that distributes, including through electronic distribution, actionable material.
4. Authorizes recovery of actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages of $200,000 and attorney’s fees and costs. Requires this amount to be adjusted, commencing on January 1, 2023, and every five years thereafter, to reflect an increase in the cost of living in California, as indicated by the annual average of the California Consumer Price Index.
5. Authorizes a parent or guardian to bring a civil action pursuant to 3) on behalf of a minor or ward in the actionable material.
6. Requires a person or entity distributing actionable material, upon receipt of notice from the person in the actionable material, to immediately remove the material or disable its distribution.
7. Requires an action brought pursuant to 3) to be commenced within six years of discovery of infringement, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.
8. Prohibits civil liability or statutory damages if actionable material about which the defendant received notice is removed from electronic distribution, or access to them is disabled, within two business days of having received notice of claimed infringement.
9. Protects a person from liability for distributing the material pursuant to this section if the distribution is made in the course of reporting unlawful activity or is necessary to comply with a court order or other law.
10. Requires a person or entity that operates an online service or internet website that is available in California to list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of this bill, and to create a method to contact the agent listed for the purpose of reporting content that the user believes was erroneously removed as actionable material.
11. Makes the provisions of this bill severable.
12. Requires a person or entity that operates an online service or internet website that is available in California to destroy an item of actionable material if the operator of that online service or internet website has confirmed that any investigation related to that actionable material has been completed.

EXISTING STATE LAW:

1. Prohibits a person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. (Penal Code Section 647 (j) (4) (A).)
2. Creates a private right of action against a person who intentionally distributes a photograph or recorded image of another that exposes that person’s intimate body parts, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration without that person’s consent, knowing, or where they should have reasonable known, that the other person had a reasonable expectation that the material would remain private, and causes the other person to suffer damages. (Civil Code Section 1708.85 (a). Unless otherwise specified all future references are to the Civil Code.)
3. Defines “intimate body part” as any portion of the genitals, and, in the case of a female, also includes any portion of the breast below the top of the areola, that is uncovered or visible through less than fully opaque clothing. (Section 1708.85 (b).)
4. Exempts the person distributing material from liability pursuant to the above under any of the following circumstances:
   1. The distributed material was created under an agreement by the person appearing in the material for its public use and distribution or otherwise intended by that person for public use and distribution;
   2. The person possessing or viewing the distributed material has permission from the person appearing in the material to publish by any means or post the material on an Internet Web site;
   3. The person appearing in the material waived any reasonable expectation of privacy in the distributed material by making it accessible to the general public;
   4. The distributed material constitutes a matter of public concern;
   5. The distributed material was photographed, filmed, videotaped, recorded, or otherwise reproduced in a public place and under circumstances in which the person depicted had no reasonable expectation of privacy; or
   6. The distributed material was previously distributed by another, except where the person has received notice from the depicted individual to cease distribution, as specified. (Section 1708.85 (c).)
5. Authorizes the court to award specified remedies and to issue a temporary restraining order, or a preliminary injunction or a permanent injunction against the defendant, ordering the defendant to cease distribution of material. (Section 1708.85 (d), (e).)
6. Provides an individual who appears, as a result of digitization, to be giving a performance they did not actually perform or to be performing in an altered depiction (“depicted individual”) a cause of action against a person who does either of the following:
   1. Creates and intentionally discloses sexually explicit material and the person knows or reasonably should have known the depicted individual in that material did not consent to its creation or disclosure; or,
   2. Intentionally discloses sexually explicit material that the person did not create and the person knows the depicted individual in that material did not consent to the creation of the sexually explicit material. (Section 1708.86.)
7. Defines “sexually explicit material,” for the purposes of the above action, to mean any portion of an audiovisual work that shows the depicted individual performing in the nude or appearing to engage in, or being subjected to, sexual conduct, as those terms are defined. (Section 1708.86 (a).)
8. Exempts a person from liability in the above action if the person discloses the sexually explicit material in the course of reporting unlawful activity; exercising the person’s law enforcement duties; or in hearings, trials, or other legal proceedings. The person is also exempt if the material is any of the following:
   1. A matter of legitimate public concern;
   2. A work of political or newsworthy value or similar work; or
   3. A commentary, criticism, or disclosure that is otherwise protected by the California Constitution or the United States Constitution. (Section 1708.86 (c).)
9. Authorizes the court to award specified remedies to a prevailing plaintiff that suffers harm, including economic and noneconomic damages or statutory damages. (Section 1708.86.)

EXISTING FEDERAL LAW:

1. Provides that no provider or user of a website shall be treated as the publisher or speaker of any information provided by another information content provider, and that no provider of a website shall be held liable on account of any action voluntarily taken in good faith to restrict the availability of materials that the provider determines to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. (47 U.S.C. Section 230 (c) (Section 230).)
2. Provides that no cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with Section 230. (47 U.S.C. Section 230 (e).)
3. Authorizes any person who, while a minor, was a victim of a violation of 18 U.SC. § 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423, and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, to sue in any appropriate United States District Court and provides for recovery of the actual damages such person sustains or liquidated damages in the amount of $150,000, and the cost of the action, including reasonable attorney’s fees and other litigation costs reasonably incurred. The court may also award punitive damages and such other preliminary and equitable relief as the court determines to be appropriate. There is no statute of limitations for such actions. (18 U.S.C. Section 2255.)
4. Provides a right to free speech and expression. (U.S. Const., 1st amend; Cal. Const., art 1, Section 2.)
5. Recognizes certain judicially created exceptions to the rights of freedom of speech and expression, including for true threats and incitement to imminent violence. (E.g., Virginia v. Black (2003) 538 U.S. 343, 359.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Child sexual abuse material (CSAM) refers to content, including pictures and videos, which capture the sexual abuse of children. CSAM is deplorable and yet tragically prevalent throughout social media. In 2021, the National Center for Missing and Exploited Children (NCMEC) estimated that over 29 million reports of suspected child sexual exploitation were reported by online platforms. Those 29 million reports included nearly 85 million individual images and videos of CSAM. (What is Child Sexual Abuse Material (CSAM), (Rape, Abuse & Incest National Network (RAINN)) (August 25, 2022) available at: https://www.rainn.org/news/what-child-sexual-abuse-material-csam.)

A spring 2022 report by Forbes detailed how the exploitation manifests on the platform TikTok in particular. The review explored “how viewers regularly use the comments to urge young girls to perform acts that appear to toe the line of child pornography – rewarding those who oblige with TikTok gifts, which can be redeemed for money, or off-platform payments to Venmo, PayPal or CashApp accounts that users list in their TikTok profiles.” (How TikTok Live Became ‘A Strip Cub Filled With 15-Year-Olds’, Alexandra S. Levine (Forbes) April 27, 2022 available at: https://www.forbes.com/sites/alexandralevine/2022/04/27/how-tiktok-live-became-a-strip-club-filled-with-15-year-olds/?sh=734b448162d7.) Further, the article describes:

The transactions are happening in a public online forum open to viewers almost anywhere on the planet. Some of the demands are explicit – like asking girls to kiss each other, spread their legs or flash the camera – and some harder to detect, masked with euphemisms. Commenters say ‘outfit check’ to get a complete look at a girl’s body; ‘pedicure check’ to see their feet; ‘there’s a spider on your wall’ to get girls to turn around and show their rears; and ‘play rock-paper-scissors to encourage girls to flirt-fight or wrestle with each other. Phrases like ‘put your arms up’ or ‘touch the ceiling’ are often directed at girls in crop tops so viewers can see their breasts and stomachs. And many simply coax girls to show their tongues and belly buttons or do handstands and splits. In return, the girls are showered with virtual gifts, like flowers, hearts, ice cream cones and lollipops, that can be converted to cash. (Ibid.)

Congress has also engaged in efforts to curb the prevalence of CSAM on social media platforms during the last three years, including this past month with the reintroduction of the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act. The EARN IT Act would remove immunity for companies that “knowingly facilitate or profit” from sexually explicit images of children on their platforms. (BREAKING: Congress Introduces Bill Compelling Big Tech to Address Growing Threat of Online Child Sexual Exploitation, (RAINN) April 20, 2023 available at: https://www.rainn.org/news/breaking-congress-introduces-bill-compelling-big-tech-address-growing-threat-online-child.) Previous efforts to move this legislation have ultimately failed due to concerns that the bill would negatively impact the protections intended to be provided by Section 230 of the federal Communications Decency Act. (Congress Re-Introduces Bill to Protect Kids From Online Sexual Abuse. Here’s What to Know, Solcyre Burga (TIME) April 23. 2023 available at: https://time.com/6273895/congress-re-introduces-bill-to-protect-kids-from-online-sexual-abuse/.)

According to the author:

This bill seeks to provide victims the same standing in state court that Masha’s law gives them in federal court. Any person or entity who transmits CSAM is liable to be sued for damages under SB 646. SB 646 also requires that platforms list an agent who will be responsible for fielding requests to remove content. If the platform does not act within two business days, they will be liable to the civil remedies listed in Masha’s law. The platform must also create a method for contacting that agent. Platforms already are using hash values to locate and remove such content.

Any action taken must commence within 6 years of discovery or within 10 years of the victim turning 18, which ever is longer. In addition to any other damages awarded, statutory damages in the amount of two hundred thousand dollars ($200,000) shall be awarded to the prevailing plaintiff and will be paid by the defendant for failing to cease distribution of the material within two business days after notice. This amount will be adjusted for inflation in 2028 and every five years after that.

This bill proposes to address the scourge of CSAM on social media platforms by authorizing a cause of action by a person who is depicted in “actionable material,” as defined, against a person or entity that distributes the material. In addition to allowing for recovery of actual damages, compensatory damages, punitive damages, and attorney’s fees and costs, the bill would require a court to grant a prevailing plaintiff $200,000 in statutory damages if the person or entity who distributes the material fails to remove the content within two days of receiving notice.

As currently written, the notice requirement contemplated by the bill appears to intend to function as a potential safe harbor to avoid the additional statutory penalties. Subdivision (e)(2) of the bill states that if the actionable material is removed by the person or entity within two days of receiving the notice, a potential defendant may avoid both civil liability as well as liability for statutory damages. However, it is not clear at which point in the process the plaintiff is obligated to provide the notice, what form it should take, or whether it is intended to also provide safe harbor from the statutory damages alone, or for any of the other recovery available in the bill as well. Should this bill be approved by this Committee, the author may wish to make amendments clarifying the notice provisions of the bill.

First Amendment Concerns. A coalition of technology industry businesses oppose this bill and claim the following:

SB 646 raises several constitutional concerns and its overbreadth creates a significant chilling effect on lawful speech. Platforms deal with millions of pieces of content every single day. If confronted with a notice to take down content, they will air on the side of caution and remove it due to the significant liability exposure. They will have no choice but to do this even if the content does not violate their policies because the risk is too high. Though well-intended, this bill will result in more lawful speech being removed and fewer online spaces for teens to communicate and share ideas with one another.

In addition to the tech coalition, Oakland Privacy raises further concerns regarding the impact of the two-day response window provided for by the bill. They posit that by “using such an abbreviated timeline, the bill seeks to create a rebuttable presumption that *any* content that is reported must be taken down with no questions asked and no meaningful evaluation, including that of whether or not the reporting individual is or is not the minor depicted in the content or their parent or guardian.”

The First Amendment of the United States Constitution provides that, “Congress shall make no law abridging the freedom of speech, or of the press.” [Emphasis added.] As applied to the states through the Fourteenth Amendment, and as interpreted by the courts, the First Amendment prohibits any law or policy, at any level of government, from abridging freedom of speech. Legislation seeking to regulate speech can generally be distinguished as either content-based or content-neutral. Content-based laws, or laws that target a particular type of speech, must meet a strict scrutiny standard and must therefore be the least restrictive means to achieve a compelling government purpose in order to withstand legal challenge. Content neutral laws, on the other hand, or laws which serve a purpose unrelated to the speech itself, need only pass intermediate scrutiny. Under this standard, the law “need not be the least restrictive or least intrusive means of’ serving the government’s interests,” but “ may not regulate expression in a manner that a substantial portion of the burden on speech does not serve to advance its goals.”

Supreme Court jurisprudence has identified various categories of speech and determined how much each is protected by the First Amendment. These categories can first be broken down into two primary categories – protected or unprotected. Protected speech benefits from the full shield of the First Amendment and cannot be regulated by the government. Unprotected speech is speech that has been found to be “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality,” and thus may be subject to government regulation. (R.A.V. v. St. Paul (1992) 505 U.S. 377, 383.) Unprotected speech can be broken down further into various categories including: true threats; obscenity; defamation; and incitement to imminent lawless action. Obscenity is defined through the following three-pronged test referred to as the Miller test. (Miller v. California, 413 U.S. 15 (1972).)

The Supreme Court has long upheld the premise that what is now identified as CSAM but is colloquially understood to be child pornography is obscene and therefore generally not protected by the First Amendment. (New York v. Ferber, 458 U.S. 747 (1982).) The opponents therefore argue that it is actually the subsequent necessary implications of this bill that raise First Amendment concerns. In sum, that the economic risk of failing to address every instance of CSAM is so great, that social media platforms will overcorrect and in so doing result in a silencing of minors and other content on the platform. Because this bill would only obligate the platforms to remove content that is not subject to First Amendment protection, there is a strong argument that the bill does not run afoul of the First Amendment.

It is worthwhile to note, however, that any legislation imposing requirements on a company to make determinations on whether to remove user’s content or speech risks a chilling effect, regardless of whether or not it passes constitutional muster. Various factors may heighten this risk. Arguably, social media platforms already have the technology to quickly identify and remove certain types of content – that is why most users are not regularly exposed to pornographic images when casually searching for unrelated content. Therefore, it is possible that platforms may be able to modify their existing tools to face the requirement posed by this bill without unduly burdening non-actionable material. However, to the extent that platforms with immense numbers of users may be inundated by reports of actionable material, valid or otherwise, there may exist a risk that platforms will react in such a way so as to avoid liability to the greatest extent possible. One factor in increasing or decreasing the likelihood of this reaction may very well be the amount of time platforms have to respond to these reports, with a shorter time period leading to an increased risk of over-removal. While there is no question that any distribution of CSAM is detrimental to the child depicted, reasonable minds may differ on the most acceptable balance between preventing harm caused by CSAM and harming other users through the censorship of non-actionable material.

Section 230 of the Federal Communications Decency Act. The federal Communications Decency Act (CDA) provides 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,” and affords broad protection from civil liability for the good faith content moderation decisions of interactive computer services. (47 U.S.C. Sec. 230(c)(1) and (2).) Though Section 230 was originally passed in response to judicial inconsistency with respect to the liability of internet service providers under statutes pertaining to “publishers” of content created by others, it has since been interpreted to confer operators of social media platforms and other online services with broad immunity from liability for content posted on their platforms by others.

Section 230 also indicates that “[n]othing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section,” but further provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” (47 U.S.C. Sec. 230(e)(3).) The latter provision has generally been interpreted to expressly preempt any state law that has the effect of treating a social media or other online platform as the publisher of information posted by other users, including prescriptive requirements relating to content moderation. This is consistent with the law’s original intent, which was to ensure that internet platforms facilitating the sharing of content can do so without considerable risk of liability in the event that content is not meticulously policed.

Since the development of social media platforms, the extent of Section 230’s immunity shield has been heavily litigated. Questions have arisen regarding what elements of a user’s experience and therefore of a social media platform’s business model, benefit from section 230, and which fall outside its scope. In Fair Housing Council v. Roommates.com, LLC, Roommates.com was sued by a coalition of fair housing councils in California for allegedly violating the federal Fair Housing Act and state housing discrimination laws. (Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (2007).) The claim was based largely on the website’s search function which appeared to prefer certain profiles over others, seemingly on the basis of elements of the user’s identity, including their gender and sexual orientation, which were collected by Roommate.com through a mandatory questionnaire developed by the website. The District Court ruled in favor of Roommates.com, holding that the website was protected by Section 230. The councils subsequently appealed to the Ninth Circuit, which held that the website’s use of the information they required users to submit in order to utilize the website rendered Roommate.com outside the protection of Section 230. In its analysis, the court reasoned that a “website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is ‘responsible, in whole or in part’ for creating or developing, the website is also a content provider.” (Roommates.com, LLC, 521 F.3d at p. 1163 (2007).) With regard to Roommate.com’s own role in developing the users’ profiles, the court argued, “Roommate is ‘responsible’ at least ‘in part’ for each subscriber’s profile page, because ever such page is a collaborative effort between Roommate and the subscriber.” (Id. at p. 1167)

Just two years later in Barnes v. Yahoo! Inc., the Ninth Circuit established a three-part test for determining whether a website benefits from the liability shield of Section 230. According to Barnes, Section 230 “only protects from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.” (Barnes v. Yahoo! Inc., 570 F.3d 1096, 1100 - 1101 (2009).)

Most recently, the Court issued a decision in a pair of cases addressing the same practice – Twitter v. Taamneh and Google v. Gonzalez. In November 2015, the Islamic State (ISIS) took responsibility for a series of coordinated terrorist attacks in Paris. Among the at least 130 people killed was 23-year-old American Nohemi Gonzalez. Shortly after Nohemi’s death, her father filed suit against Google, Twitter, and Facebook, arguing that the platforms were liable for aiding and abetting international terrorism by failing to appropriately respond to, or address, terrorist organizations’ use of their services. (Gonzalez v. Google LLC, (Oyez) available at: https://www.oyez.org/cases/2022/21-1333.) They additionally argued that Google was not immune under Section 230 because their algorithm recommended ISIS videos to their users who ultimately conducted the acts of terrorism. The petitioners lost in both district court and on appeal to the Ninth Circuit, and subsequently appealed to the United States Supreme Court. Earlier this month, the Court issued its decision in both matters, holding that “the failure to allege that the platforms here do more than transmit information by billions of people – most of whom use the platforms for interactions that once took place via mail, on the phone, or in public areas – is insufficient to state a claim that defendants knowingly gave substantial assistance and thereby aided and abetted ISIS’ acts. A contrary conclusion would effectively hold any sort of communications provider liable for any sort of wrongdoing merely for knowing that the wrongdoers were using its services and failing to stop them.” (Twitter, Inc. v. Taamneh, (2023) 143 S. Ct. 1206, 1213.)

To the extent that the decision in Twitter left room for argument that social media platforms may still be held liable for the distribution of CSAM due to the exemption found at (e)(1) of the code, it is likely that a recent denial of a petition for certiorari foreclosed that argument. Section 230 includes an exemption to immunity for enforcement of sex trafficking laws, including the sexual exploitation of children. (47 U.S.C. Sect. 230(1)(e).) In Does v. Reddit, 51 F.4^th 1137 (2022), a group of parents brought a claim against Reddit after discovering explicit images or videos of their children posted to various subreddit groups. The parents claimed that, despite contacting the platform with the information countless times, Reddit did little if anything to remove the content or prevent it from being shared due to the profit it provides the platform. (Reddit, 51 F.4th 1137, 1139.) Based on this allegation, the parents argued that Reddit reaped financial benefit from openly hosting child pornography and sought recovery under federal law 18 U.S.C. Section 1495, claiming that Reddit is liable as a beneficiary of child sex trafficking, among other causes of action. (Id. at 1140). The district court held that in order to trigger the exemption to immunity provided by Section 230, plaintiffs seeking to hold a platform liable must plead that Reddit’s own conduct violated the criminal sex trafficking statute, a requirement which the plaintiffs failed to meet. (Ibid.)

The parents appealed to the Ninth Circuit, which held that “the plain text of FOSTA and precedent interpreting a similar immunity exception establishes that a website can only be held liable if its own conduct – not a third party’s – violates 18 U.S.C. §1591.” (Id. at 1141.) The court further reasoned: “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.’ […] A complaint against a website that merely alleges trafficking by the website’s users – without the participation of the website – would not survive. Proof that a user committed criminal trafficking may ‘entitle a plaintiff to relief’ in a case against the user, but not against the website.” (Id. at 1142.) On May 30, the Supreme Court declined to grant the parents’ petition for writ of certiorari, leaving the Ninth Circuit decision untouched. (Doe v. Reddit, Inc., 2023 U.S. LEXIS 2249.)

It is possible that the current measure—at least as applied to social media platforms themselves-- may be vulnerable to the same reasoning. The bill authorizes a cause of action by an individual who is depicted in CSAM against a person or entity that distributes CSAM. A claim brought under this bill’s provisions against an individual user of a social media platform may result in recovery for a plaintiff. However, a claim against a social media platform (or entity) that hosts CSAM would mimic the facts of Reddit. Ultimately, were this bill to be signed into law, a successful defense against a preemption challenge would likely hinge on whether the platform’s participation, knowledge, or benefit from the distribution of CSAM was sufficient to establish a “participation in the venture.” Nevertheless, the bill could provide compensation to victims of CSAM as it is applied to those individuals and entities who either create or upload the content to the platform, offering an important avenue for victims to hold such producers and distributors responsible for their wrongdoing to the extent.

The Soaring Center, the sponsor of the measure, contends that the measure is safe from a preemption challenge:

It is worth noting that CSAM is wholly excluded from immunization otherwise provided by Section 230. 47 U.S.C. § 230(e)(l). Further, section 230 unambiguously proclaims that "it is the policy of the United States--to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer." 47 U.S.C. § 230(5). Any arguments to the contrary are without merit and made in bad faith.

The child pornography facilitated, created, and distributed by any online platform is "without the protection of the First Amendment" and without the protection of Section 230. "Given the importance of the State's interest in protecting the victims of child pornography," federal and state regulation is necessary to "stamp out this vice at all levels in the distribution chain." Osborne v. Ohio, 495 U.S. 103, 110- 11 (1990).

As currently drafted this bill will likely face significant legal challenges as it would apply to social media platforms. Nonetheless, the author has undoubtedly identified a significant social woe desperately in need of a thoughtful solution.

Author’s amendments. The current version of the bill would require the Attorney General to enforce its provisions against a person or entity that engages in repeated violations, and further directs the AG to “levy fines commensurate” with the damages provided for in the bill, payable to the person in the actionable material. The California Constitution entrusts the Attorney General with the power to enforce the laws of the state. (California Constitution, Article V, Section 13.) As it is tasked with enforcement of every law on the books, it is arguably not in the interest of public policy to require the AG to enforce them in any specific way. Moreover, the AG’s enforcement authority need not be specifically identified in new statutes. In order to provide the AG with the latitude to determine the best method of enforcing this bill, the author proposes to strike subdivision (i) in its entirety.

Additionally, the author proposes one minor clarifying amendment to subdivision (b)(1).

ARGUMENTS IN SUPPORT: This bill is sponsored by The Soaring Center, and is supported by the Children’s Advocacy Institute, Child USA, the California Catholic Conference, and the Consumer Attorneys of California. In support of the measure the Consumer Attorneys of California write:

Child sex abuse material (CSAM) is rampant on social media. Too often, victims have no legal recourse for the online distribution of content depicting their abuse. SB 646 gives victims standing in state court by codifying a federal statute that enables legal advocates to bring cases against social media companies that profit or benefit from the distribution of CSAM.

Child sexual abuse material is excluded from immunization otherwise provided by Section 230. 47 U.S.C. § 230(e)(l). Further, section 230 unambiguously proclaims that "it is the policy of the United States--to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer." 47 U.S.C. § 230(5).

The CSAM facilitated, created, and distributed by any online platform is "without the protection of the First Amendment" and without the protection of Section 230. "Given the importance of the State's interest in protecting the victims of child pornography," federal and state regulation is necessary to "stamp out this vice at all levels in the distribution chain." Osborne v. Ohio, 495 U.S. 103, 110- 11 (1990).

ARGUMENTS IN OPPOSITION: This bill is opposed by a coalition of technology industry organizations including NetChoice, the Internet Coalition, Oakland Privacy, and the California Chamber of Commerce. Oakland Privacy writes the following regarding their concerns:

While there is no question that the problem SB 646 is trying to solve is significant, the bill as currently written is overbroad and problematic. The Legislature is responsible for developing legislation that is workable and fair to all parties and SB 646 falls considerably short of that mark.

[…]

Our first area of concern is the bill’s definition of “illicit pictures”. The bill uses the definition of “an image of the intimate body part or parts of an identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates”.

While we don’t want to engage in pointless what-aboutism, there are several categories of images that contain intimate body parts that may not be what is generally considered CSAM or child sexual abuse materials. These can include educational materials about sex and sexuality, topless protests engaged in by adolescent women, some explicit artworks, nudist groups, or material exchanged by teens themselves or even parental nude images of infants and toddlers. (You may think the last one silly, but the author of this letter has a parade of toddler in bath nude images in an album kept to this day by my mom, and if this had happened in the era of Facebook, would inevitably have been shared online). In short, the definition lacks precision and targets both CSAM and non-CSAM images.

[…]

We are also concerned that inter-family disputes may play out in the use of this law, including parents in negative relationships with their adolescent children including those who may be LGBTQ/trans or who are in relationships that lack parental approval.

Pending related legislation. AB 1394 (Wicks, 2023) would require social media platforms to provide a mechanism for users to report child sexual abuse material in which they are depicted and grants victims of commercial sexual exploitation a cause of action against social media platforms for features that were a substantial factor in causing their exploitation. This bill is pending before the Senate Judiciary Committee

AB 1282 (Lowenthal, 2023) would require the state Mental Health Services Oversight and Accountability Commission to report to the Legislature a statewide strategy to understand, communicate, and mitigate mental health risks associated with the use of social media by children and youth. The bill is currently pending before the Senate Health Committee.

SB 680 (Skinner, 2023) would prohibit a social media platform from using a design, algorithm, practice, affordance, or feature that the platform knows or should have known causes child users to experience specified harms, including receiving content that facilitates purchase of a controlled substance and developing an eating disorder. The bill is currently pending before this Committee.

SB 278 (Skinner, 2023) would prohibit a social media platform from using a design, algorithm, practice, affordance, or feature that the platform knows or should have known causes child users to experience specified harms, including receiving content that facilitates purchase of a controlled substance and developing an eating disorder. The bill is currently on the Senate Inactive File.

REGISTERED SUPPORT / OPPOSITION:

Support

The Soaring Center (sponsor)
California Catholic Conference
Child USA
Childrens Advocacy Institute
Consumer Attorneys of California

Opposition

Cal Chamber
Civil Justice Association of California
Computer and Communications Industry Association
Internet Coalition
Netchoice
Oakland Privacy
Technet

Analysis Prepared by: Manuela Boucher-de la Cadena / JUD. / (916) 319-2334

 THIRD READING  

Bill No: SB 646

Author: Cortese (D)

Amended: 4/27/23

Vote: 21

SENATE JUDICIARY COMMITTEE: 11-0, 4/25/23

AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Min, Niello, Stern, Wiener

SENATE APPROPRIATIONS COMMITTEE: 6-0, 5/18/23

AYES: Portantino, Ashby, Bradford, Seyarto, Wahab, Wiener

NO VOTE RECORDED: Jones

SUBJECT: Civil law: personal rights: online sex trafficking: sexual photographs

SOURCE: Liberty Law

DIGEST:

This bill creates liability for the distribution of certain “actionable material,” which includes illicit pictures of minors and images or depictions of minors that serve as the basis for criminal and civil liability at the federal level.

ANALYSIS:

Existing federal law:

1. Provides that no provider or user of a website shall be treated as the publisher or speaker of any information provided by another information content provider, and that no provider of a website shall be held liable on account of any action voluntarily taken in good faith to restrict the availability of materials that the provider determines to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. (47 U.S.C. § 230(c) (Section 230).)
2. Provides that no cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with Section 230. (47 U.S.C. § 230(e).)
3. Authorizes any person who, while a minor, was a victim of a violation of 18 U.SC. § 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423, and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, to sue in any appropriate United States District Court and provides for recovery of the actual damages such person sustains or liquidated damages in the amount of $150,000, and the cost of the action, including reasonable attorney’s fees and other litigation costs reasonably incurred. The court may also award punitive damages and such other preliminary and equitable relief as the court determines to be appropriate. There is no statute of limitations for such actions. (18 U.S.C. § 2255.)
4. Provides a right to free speech and expression. (U.S. Const., 1st amend; Cal. Const., art 1, § 2.)
5. Recognizes certain judicially created exceptions to the rights of freedom of speech and expression, including for true threats and incitement to imminent violence. (E.g., Virginia v. Black (2003) 538 U.S. 343, 359.)

Existing state law:

1. Prohibits a person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. (Pen. Code § 647(j)(4)(A).)
2. Creates a private right of action against a person who intentionally distributes a photograph or recorded image of another that exposes that person’s intimate body parts, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration without that person’s consent, knowing, or where they should have reasonable known, that the other person had a reasonable expectation that the material would remain private, and causes the other person to suffer damages. (Civ. Code § 1708.85(a).)
3. Defines “intimate body part” as any portion of the genitals, and, in the case of a female, also includes any portion of the breast below the top of the areola, that is uncovered or visible through less than fully opaque clothing. (Civ. Code § 1708.85(b).)
4. Exempts the person distributing material from liability pursuant to the above under specified circumstances. (Civ. Code § 1708.85(c).)
5. Authorizes the court to award specified remedies and to issue a temporary restraining order, or a preliminary injunction or a permanent injunction against the defendant, ordering the defendant to cease distribution of material. (Civ. Code § 1708.85(d), (e).)
6. Provides an individual who appears, as a result of digitization, to be giving a performance they did not actually perform or to be performing in an altered depiction (“depicted individual”) a cause of action against a person who does either of the following:
   1. creates and intentionally discloses sexually explicit material and the person knows or reasonably should have known the depicted individual in that material did not consent to its creation or disclosure; or,
   2. intentionally discloses sexually explicit material that the person did not create and the person knows the depicted individual in that material did not consent to the creation of the sexually explicit material. (Civ. Code § 1708.86.)
7. Defines “sexually explicit material,” for the purposes of the above action, to mean any portion of an audiovisual work that shows the depicted individual performing in the nude or appearing to engage in, or being subjected to, sexual conduct, as those terms are defined. (Civ. Code § 1708.86(a).)
8. Exempts a person from liability in the above action if the person discloses the material in the course of reporting unlawful activity; exercising the person’s law enforcement duties; or in hearings, trials, or other legal proceedings. The person is also exempt if the material meets specified conditions. (Civ. Code § 1708.86(c).)
9. Authorizes the court to award specified remedies to a prevailing plaintiff that suffers harm, including economic and noneconomic damages or statutory damages. (Civ. Code § 1708.86.)

This bill:

1. Authorizes a person who is depicted in actionable material when the person was less than 18 years of age to bring a civil action for specified damages and other relief, against a person or entity that distributes, including through electronic distribution, actionable material.
2. Makes injunctive relief available to block or interrupt the distribution, including electronic distribution, of actionable material.
3. Requires the Attorney General to commence an action to enforce this law against a person or entity that engages in repeated violations, and, among other actions, to levy fines commensurate with the statutory damages provided for therein, payable to the person in the actionable material.
4. Defines “actionable material” to mean a moving or still photograph in any technological form, regardless of whether it has been altered, that is either of the following:
   1. an “illicit” picture of a person who was less than 18 years of age at the time the photograph was created, or their identifiable likeness; or
   2. an image or depiction of a person who, when less than 18 years of age, was a victim of a violation of specified federal laws and would have a cause of action available to them under 18 U.S.C. Section 2255 due, in whole or in part, to that image or depiction.
5. Defines “illicit picture” to mean an image of the intimate body part or parts of an identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates.
6. Requires a person or entity distributing actionable material, upon receipt of notice from the person in the actionable material, to immediately remove the material or disable its distribution. In addition to any other damages awarded, statutory damages in the amount of $200,000, as specified, shall be awarded to the prevailing plaintiff to be paid by the defendant for failing to cease distribution of the material within two business days after notice of claimed infringement of this section was received by the defendant. If the material is removed or access is disabled within that time frame, no liability shall attach.
7. Provides that an action brought pursuant thereto shall be commenced within 6 years of discovery of infringement, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.
8. Provides that a person shall not be liable for distributing the material if the distribution is made in the course of reporting unlawful activity or is necessary to comply with a court order or other law.
9. Requires a person or entity that operates an online service or website that is available in California to do the following:
   1. list, in a location available to the public via the service or on the website, an agent for notification of claimed violation of this section;
   2. create a method to contact the agent for the purpose of reporting content that the user believes was erroneously removed as actionable material; and
   3. destroy an item of actionable material if the operator has confirmed that any investigation related to that actionable material has been completed.
10. Provides that its provisions are severable and cumulative to any other rights, duties, obligations, penalties, or crimes imposed under any other law.

Background

Numerous state and federal laws, both civil and criminal, establish penalties for the creation, distribution, and possession of certain sexually explicit or obscene material. For instance, in California, recently enacted laws specifically provide private causes of action against those creating and/or distributing sexually explicit material without the consent, as provided, of the depicted individuals. This includes actions involving explicit “deep fake” material and so called “revenge porn.” Given their heinous nature, a more robust set of laws address such materials when children are involved. Relevant here, “Masha’s law” provides civil remedies for personal injuries caused by the sexual exploitation of children, namely the creating, distributing, downloading, and possessing of child sexual abuse material (CSAM). The statute laws out a series of federal criminal laws that serve as predicate offenses and provides actual or liquidated damages, as well as costs and attorney’s fees.

This bill authorizes a state cause of action against a person or entity that distributes “actionable material.” That term includes material that would serve as a predicate offense under Masha’s law and “illicit pictures” of minors, as defined. The bill also requires a person or entity distributing actionable material to remove it or disables its distribution, subject to a civil action for statutory damages for failure to do so within two business days of notice of claimed infringement. This bill is sponsored by Liberty Law. The bill is supported by the California Catholic Conference and opposed by various industry groups, including TechNet.

Comments

According to the author:

Child sex abuse material (CSAM) is rampant on social media. Too often, victims have no legal recourse for the online distribution of content depicting their abuse. These sexually exploited children are re-victimized every time a predator watches CSAM content. Often times, predators produce material where the victim is smiling. This leads to survivors worrying that people may think they are enjoying their abuse. Victims have testified that the worst part of the re-victimization process is knowing that the content may be used to normalize the abuse and groom future victims.

SB 646 gives victims standing in state court by codifying a federal statute that enables legal advocates to bring cases against social media companies that profit or benefit from the distribution of CSAM. In 2017, Congress passed the Fight Online Sex Trafficking Act that closed a loophole in law that gave platforms protection from liability when they facilitated CSAM distribution. Victim Advocates use Masha’s Law (2006) to seek restitution and hold platforms accountable for their culpability. Through this statute, victims are able to sue their abusers and their enablers, in federal court.

This bill seeks to provide victims the same standing in state court. Any person or entity who transmits CSAM is liable to be sued for damages under SB 646. SB 646 also requires that platforms list an agent who will be responsible for fielding requests to remove content. If the platform does not act within two business days, they will be liable to the civil remedies listed in Masha’s law. The platform must also create a method for contacting that agent. Platforms already are using hash values to locate and remove such content.

Any action taken must commence within 6 years of discovery or within 10 years of the victim turning 18, which ever is longer. In addition to any other damages awarded, statutory damages in the amount of two hundred thousand dollars ($200,000) shall be awarded to the prevailing plaintiff and will be paid by the defendant for failing to cease distribution of the material within two business days after notice. This amount will be adjusted for inflation in 2028 and every five years after that.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• DOJ: Unknown costs to the Department of Justice (DOJ), likely in the hundreds of thousands, in additional permanent staff resources to conduct the mandatory enforcement of repeat violations as required by the bill (General Fund).
  
• Judicial Branch: Unknown court workload cost pressures in order to adjudicate civil violations of this bill’s provisions (Trial Court Trust Fund, General Fund). See Staff Comments for additional details.

SUPPORT: (Verified 5/18/23)

Liberty Law (source)
California Catholic Conference

Child USA

Children’s Advocacy Institute

Consumer Attorneys of California

The Soaring Center

OPPOSITION: (Verified 5/18/23)

California Chamber of Commerce

Civil Justice Association of California

Computer & Communications Industry Association

Internet Coalition

NetChoice

TechNet

ARGUMENTS IN SUPPORT: The California Catholic Conference writes:

“Online sexual exploitation is a growing concern, especially on emerging social media such as Instagram, TikTok and OnlyFans. PornHub, the largest pornographic site in the world had to remove over 10 million pornographic videos in December 2020 because they did not verify users, could not confirm consent was obtained, and had numerous cases of reuploads of the real sexual abuse, rape, nonconsensual content, and sex trafficking of children, teenagers and adults.

This bill will help to deter traffickers and other bad actors from sharing sexually exploitive material of children and will empower survivors with the tools to have their images removed – helping them to recover their dignity and rebuild their lives.”

ARGUMENTS IN OPPOSITION: A coalition of business and technology groups, including the Computer and Communications Industry Association, believe the bill’s provisions that hold platforms liable for distributing illicit pictures of minors and other actionable material violates the First Amendment:

“SB 646 will have a significant chilling effect on lawful speech and violates established First Amendment principles

As noted above, SB 646 raises several constitutional concerns and its overbreadth creates a significant chilling effect on lawful speech. For example, Section 2 of the bill creates a strong incentive to over-remove content any time a request is submitted. Platforms deal with millions of pieces of content every single day. If confronted with a notice to take down content, they will air on the side of caution and remove it due to the significant liability exposure. They will have no choice but to do this even if the content does not violate their policies because the risk is too high. Though well-intentioned, this bill will result in more lawful speech being removed and fewer online spaces for people to communicate and share ideas with one another.”

Prepared by: Christian Kurpiewski / JUD. / (916) 651-4113

5/20/23 13:00:40

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 646 (Cortese) - Civil law: personal rights: online sex trafficking: sexual photographs

Bill Summary:

SB 646 would allow a person who is depicted in certain sexual images when the person was less than 18 years of age to bring a civil action against a person or entity that distributes that material, as specified. The bill would establish certain procedures for such civil actions and require the Attorney General to enforce the bill’s provisions against repeated violators.

Fiscal Impact:

• DOJ: Unknown costs to the Department of Justice (DOJ), likely in the hundreds of thousands, in additional permanent staff resources to conduct the mandatory enforcement of repeat violations as required by the bill (General Fund).
  
• Judicial Branch: Unknown court workload cost pressures in order to adjudicate civil violations of this bill’s provisions (Trial Court Trust Fund, General Fund). See Staff Comments for additional details.

Background:

Numerous state and federal laws, both civil and criminal, establish penalties for the creation, distribution, and possession of certain sexually explicit or obscene material. For instance, in California, recently enacted laws specifically provide private causes of action against those creating and/or distributing sexually explicit material without the consent, as provided, of the depicted individuals. This includes actions involving explicit “deep fake” material and so called “revenge porn.” Given their heinous nature, a more robust set of laws address such materials when children are involved. Relevant here, “Masha’s law” provides civil remedies for personal injuries caused by the sexual exploitation of children, namely the creating, distributing, downloading, and possessing of child sexual abuse material (CSAM). The statute laws out a series of federal criminal laws that serve as predicate offenses and provides actual or liquidated damages, as well as costs and attorney’s fees.

This bill authorizes a state cause of action against a person or entity that distributes “actionable material.” That term includes material that would serve as a predicate offense under Masha’s law and “illicit pictures” of minors, as defined. The bill also requires a person or entity distributing actionable material to remove it or disables its distribution, subject to a civil action for statutory damages for failure to do so within two business days of notice of claimed infringement.

Proposed Law:

• Provides that a person who is depicted in “actionable material,” as defined, when the person was less than 18 years of age may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages and attorney’s fees and costs, against a person or entity that distributes, including through electronic distribution, actionable material. Specifies that a parent or guardian may bring a civil action pursuant to this section on behalf of a minor or ward.
• Provides that upon receipt of notice from the person in the actionable material, a person or entity distributing actionable material shall immediately remove the material or disable its distribution.
• Provides a for a statute of limitations of six years from the time of discovery of a violation of these provisions, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.
• Provides that In addition to any other damages awarded, statutory damages in the amount of two hundred thousand dollars ($200,000) shall be awarded to a prevailing plaintiff if the defendant failed to cease distribution of the material within two business days after notice of the violation. Provides that the amount of statutory damages shall be adjusted every five years, as specified.
• Specifies that a person is not be liable for distributing the material pursuant to thse provisions if the distribution is made in the course of reporting unlawful activity or is necessary to comply with a court order or other law.
• Requires a person or entity that operates an online service or internet website that is available in California to publicly list an agent for notification of claimed violation of these provisions.
• Provides for injunctive relief to prevent the distribution of actionable material.
• Requires the Attorney General to enforce these provisions against a person or entity that engages in repeated violations and levy fines commensurate with the statutory damages described above.
• Provides that a person or entity that operates an online service or internet website that is available in California shall destroy an item of actionable material if the operator of that online service or internet website has confirmed that any investigation related to that actionable material has been completed.

Related Legislation:

• SB 287 (Skinner, 2023) would subject social media platforms to civil liability for damages caused by their practices, affordances, designs, algorithms, or features, as provided. The bill provides a safe harbor where certain auditing practices are carried out. SB 287 is currently pending on this Committee’s Suspense File.
• SB 1056 (Umberg, Ch. 881, Stats. 2022) required a social media platform, as defined, to clearly and conspicuously state whether it has a mechanism for reporting violent posts, as defined; and allows a person who is the target, or who believes they are the target, of a violent post to seek an injunction to have the violent post removed.
• AB 587 (Gabriel, Ch. 269, Stats. 2022) required social media companies, as defined, to post their terms of service and report certain information to the Attorney General on a quarterly basis.
• AB 1628 (Ramos, Ch. 432, Stats. 2022) required a social media platform, as defined, that operates in this state to create and publicly post a policy statement including specified information pertaining to the use of the platform to illegally distribute controlled substances, until January 1, 2028.
• AB 2273 (Wicks, Ch. 320, Stats. 2022) established the California Age-Appropriate Design Code Act, placing a series of obligations and restriction on businesses that provide online services, products, or features likely to be accessed by a child.

Staff Comments:

It is unknown how many violations of SB 646 will occur and necessitate court involvement. It generally costs about $1,000 to operate a courtroom for one hour. Although courts are not funded on the basis of workload, increased staff time and resources may create a need for increased funding for courts from the General Fund (GF) to perform existing duties. Numerous trial court operations are funded through the imposition and collection of criminal fines and fees. However, the Legislature has reduced and eliminated criminal fines and fees over the past decade. As a result, the 2023-24 proposed budget anticipates an ongoing annual allocation of $109.3 million from the GF to backfill declining revenue to the Trial Court Trust Fund.

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: SB 646 (Author:Cortese)

Version: April 12, 2023

Hearing Date: April 25, 2023

Fiscal: Yes

Urgency: No

Consultant: CK

SUBJECT

Civil law: personal rights: online sex trafficking: sexual photographs

DIGEST

This bill creates liability for the distribution of certain “actionable material,” which includes illicit pictures of minors and images or depictions of minors that serve as the basis for criminal and civil liability at the federal level.

EXECUTIVE SUMMARY

Numerous state and federal laws, both civil and criminal, establish penalties for the creation, distribution, and possession of certain sexually explicit or obscene material. For instance, in California, recently enacted laws specifically provide private causes of action against those creating and/or distributing sexually explicit material without the consent, as provided, of the depicted individuals. This includes actions involving explicit “deep fake” material and so called “revenge porn.” Given their heinous nature, a more robust set of laws address such materials when children are involved. Relevant here, “Masha’s law” provides civil remedies for personal injuries caused by the sexual exploitation of children, namely the creating, distributing, downloading, and possessing of child sexual abuse material (CSAM). The statute laws out a series of federal criminal laws that serve as predicate offenses and provides actual or liquidated damages, as well as costs and attorney’s fees.

This bill authorizes a state cause of action against a person or entity that distributes “actionable material.” That term includes material that would serve as a predicate offense under Masha’s law and “illicit pictures” of minors, as defined. The bill also requires a person or entity distributing actionable material to remove it or disables its distribution, subject to a civil action for statutory damages for failure to do so within two business days of notice of claimed infringement. This bill is sponsored by Liberty Law. The bill is supported by the California Catholic Conference and opposed by various industry groups, including TechNet.

PROPOSED CHANGES TO THE LAW

Existing federal law:

1. Provides that no provider or user of a website shall be treated as the publisher or speaker of any information provided by another information content provider, and that no provider of a website shall be held liable on account of any action voluntarily taken in good faith to restrict the availability of materials that the provider determines to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. (47 U.S.C. § 230(c) (Section 230).)
2. Provides that no cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with Section 230. (47 U.S.C. § 230(e).)
3. Authorizes any person who, while a minor, was a victim of a violation of 18 U.SC. § 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423, and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, to sue in any appropriate United States District Court and provides for recovery of the actual damages such person sustains or liquidated damages in the amount of $150,000, and the cost of the action, including reasonable attorney’s fees and other litigation costs reasonably incurred. The court may also award punitive damages and such other preliminary and equitable relief as the court determines to be appropriate. There is no statute of limitations for such actions. (18 U.S.C. § 2255.)
4. Provides a right to free speech and expression. (U.S. Const., 1st amend; Cal. Const., art 1, § 2.)
5. Recognizes certain judicially created exceptions to the rights of freedom of speech and expression, including for true threats and incitement to imminent violence. (E.g., Virginia v. Black (2003) 538 U.S. 343, 359.)

Existing law:

1. Prohibits a person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. (Pen. Code § 647(j)(4)(A).)
2. Creates a private right of action against a person who intentionally distributes a photograph or recorded image of another that exposes that person’s intimate body parts, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration without that person’s consent, knowing, or where they should have reasonable known, that the other person had a reasonable expectation that the material would remain private, and causes the other person to suffer damages. (Civ. Code § 1708.85(a).)
3. Defines “intimate body part” as any portion of the genitals, and, in the case of a female, also includes any portion of the breast below the top of the areola, that is uncovered or visible through less than fully opaque clothing. (Civ. Code § 1708.85(b).)
4. Exempts the person distributing material from liability pursuant to the above under any of the following circumstances:
   1. the distributed material was created under an agreement by the person appearing in the material for its public use and distribution or otherwise intended by that person for public use and distribution;
   2. the person possessing or viewing the distributed material has permission from the person appearing in the material to publish by any means or post the material on an Internet Web site;
   3. the person appearing in the material waived any reasonable expectation of privacy in the distributed material by making it accessible to the general public;
   4. the distributed material constitutes a matter of public concern;
   5. the distributed material was photographed, filmed, videotaped, recorded, or otherwise reproduced in a public place and under circumstances in which the person depicted had no reasonable expectation of privacy; or
   6. the distributed material was previously distributed by another, except where the person has received notice from the depicted individual to cease distribution, as specified. (Civ. Code § 1708.85(c).)
5. Authorizes the court to award specified remedies and to issue a temporary restraining order, or a preliminary injunction or a permanent injunction against the defendant, ordering the defendant to cease distribution of material. (Civ. Code § 1708.85(d), (e).)
6. Provides an individual who appears, as a result of digitization, to be giving a performance they did not actually perform or to be performing in an altered depiction (“depicted individual”) a cause of action against a person who does either of the following:
   1. creates and intentionally discloses sexually explicit material and the person knows or reasonably should have known the depicted individual in that material did not consent to its creation or disclosure; or,
   2. intentionally discloses sexually explicit material that the person did not create and the person knows the depicted individual in that material did not consent to the creation of the sexually explicit material. (Civ. Code § 1708.86.)
7. Defines “sexually explicit material,” for the purposes of the above action, to mean any portion of an audiovisual work that shows the depicted individual performing in the nude or appearing to engage in, or being subjected to, sexual conduct, as those terms are defined. (Civ. Code § 1708.86(a).)
8. Exempts a person from liability in the above action if the person discloses the sexually explicit material in the course of reporting unlawful activity; exercising the person’s law enforcement duties; or in hearings, trials, or other legal proceedings. The person is also exempt if the material is any of the following:
   1. a matter of legitimate public concern;
   2. a work of political or newsworthy value or similar work; or
   3. a commentary, criticism, or disclosure that is otherwise protected by the California Constitution or the United States Constitution. (Civ. Code § 1708.86(c).)
9. Authorizes the court to award specified remedies to a prevailing plaintiff that suffers harm, including economic and noneconomic damages or statutory damages. (Civ. Code § 1708.86.)

This bill:

1. Authorizes a person to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages and attorney’s fees and costs, against a person or entity that distributes, including through electronic distribution, actionable material. A parent or guardian may bring a civil action pursuant to this section on behalf of a minor or ward in the actionable material.
2. Makes injunctive relief available to block or interrupt the distribution, including electronic distribution, of actionable material.
3. Requires the Attorney General to commence an action to enforce this law against a person or entity that engages in repeated violations, and, among other actions, to levy fines commensurate with the statutory damages provided for therein, payable to the person in the actionable material.
4. Defines “actionable material” to mean a moving or still photograph in any technological form, regardless of whether it has been altered, that is either of the following:
   1. an “illicit” picture of a person who was less than 18 years of age at the time the photograph was created, or their identifiable likeness; or
   2. an image or depiction of a person who, when less than 18 years of age, was a victim of a violation of Section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of Title 18 of the United States Code, and would have a cause of action available to them under Section 2255 of Title 18 of the United States Code due, in whole or in part, to that image or depiction.
5. Defines “illicit picture” to mean an image of the intimate body part or parts of an identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates.
6. Defines “electronic distribution” to mean a transmission or sharing by electronic means including, but not limited to, transmission, posting for public view, or sharing via an internet website, platform, application, peer-to-peer file sharing, or other online mechanism.
7. Requires a person or entity distributing actionable material, upon receipt of notice from the person in the actionable material, to immediately remove the material or disable its distribution. In addition to any other damages awarded, statutory damages in the amount of $200,000, as specified, shall be awarded to the prevailing plaintiff to be paid by the defendant for failing to cease distribution of the material within two business days after notice of claimed infringement of this section was received by the defendant. If the material is removed or access is disabled within that time frame, no liability shall attach.
8. Provides that an action brought pursuant thereto shall be commenced within 6 years of discovery of infringement, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.
9. Provides that a person shall not be liable for distributing the material if the distribution is made in the course of reporting unlawful activity or is necessary to comply with a court order or other law.
10. Requires a person or entity that operates an online service or website that is available in California to do the following:
    1. list, in a location available to the public via the service or on the website, an agent for notification of claimed violation of this section;
    2. create a method to contact the agent for the purpose of reporting content that the user believes was erroneously removed as actionable material; and
    3. destroy an item of actionable material if the operator has confirmed that any investigation related to that actionable material has been completed.
11. Provides that its provisions are severable and cumulative to any other rights, duties, obligations, penalties, or crimes imposed under any other law.

COMMENTS

• • • 1. The scourge of child sexual abuse material

Globally, the volume of CSAM increased dramatically during the pandemic as both children and predators spent more time online than ever before.^[1] Child protection experts, including the anti-child-trafficking organization Thorn and INHOPE, a global network of CSAM hotlines, predict the problem will only continue to grow.^[2] In 2020 alone, the META family of social media platforms reported over 20 million instances of child exploitative content.^[3] The National Center for Missing and Exploited Children (NCMEC) reported a 97.5 percent increase in reports compared to 2019, and speculated the increase was possibly spurred by risks to children who are isolated at home with abusers and more online than ever during the COVID-19 pandemic.

While the problem is global, the United States is a massive center of the problem. Research indicates that the United States hosts more CSAM online than any other country in the world.^[4] The country accounted for 30 percent of the global total of CSAM URLs at the end of March 2022, according to the Internet Watch Foundation, a UK-based organization that works to spot and take down abusive content.^[5]

A number of factors have been identified to explain this reality:

[T]he rapidly growing CSAM problem in the US is attributable to a number of more long-term factors. The first is the country’s sheer size and the fact that it’s home to the highest number of data centers and secure internet servers in the world, creating fast networks with swift, stable connections that are attractive to CSAM hosting sites.

The second is that the vast scale of CSAM dwarfs the resources dedicated to weeding it out. This imbalance means that bad actors feel they’re able to operate with impunity within the US because the chance of them getting in trouble, even if caught, is “vanishingly small,” says Hany Farid, a professor of computer science at the University of California, Berkeley, and the co-developer of PhotoDNA, a technology that turns images into unique digital signatures, known as hashes, to identify CSAM.

Similarly, while companies in the US are legally required to report CSAM to the National Center for Missing & Exploited Children (NCMEC) once they’ve been made aware of it or face a fine of up to $150,000, they’re not required to proactively search for it.

Besides “bad press” there isn’t much punishment for platforms that fail to remove CSAM quickly, says Lloyd Richardson, director of technology at the Canadian Centre for Child Protection. “I think you’d be hard pressed to find a country that’s levied a fine against an electronic service provider for slow or non-removal of CSAM,” he says.

This bill seeks to address this problem by imposing civil liability for the distribution of “actionable material” involving children.

• • • 1. Liability for actionable material

“Actionable material” is defined as a moving or still photograph in any technological form, regardless of whether it has been altered, that is one of two things. First, it includes an “illicit picture” of a child, which is an image of the intimate body part or parts of an identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates.

The second type of actionable material is an image or depiction of a person who, when less than 18 years of age, was a victim of a violation of 18 U.S.C. Sections 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423, and would have a cause of action available to them under Masha’s law, 18 U.S.C. Section 2255 due, in whole or in part, to that image or depiction. Those predicate offenses involve children victimized through forced labor, sex trafficking, sexual abuse, or sexual exploitation, as well as certain activities relating to child pornography or sexual exploitation and the transportation of persons for illegal sexual activity and crimes.

The bill authorizes a person, or their parent or guardian, to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages and attorney’s fees and costs, against a person or entity that distributes, including through electronic distribution, actionable material. The language of the bill is slightly unclear about who has standing to bring this claim. The author has agreed to an amendment that clarifies his intent for this cause of action to be brought by those depicted as minors in the actionable material:

Amendment

Amend Section 52.9(b)(1) as follows:

A person who is depicted in actionable material when the person was less than 18 years of age may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages and attorney’s fees and costs, against a person or entity that distributes, including through electronic distribution, actionable material.

A person or entity, including a social media platform, is required to remove or disable the distribution of actionable material within two days of receipt of notice from the person depicted therein. In addition to any other damages, $200,000 in statutory damages can be awarded to a prevailing plaintiff for failure to so remove or disable.

However, the bill provides a complete defense to any liability under the bill if the defendant removes actionable material about which they received notice within two days of that notice.

An operator of an online service or website available in California is required to list an agent for notification of claimed violations and for notice that material was erroneously removed as actionable material.

In addition to the above, the Attorney General can also enforce the law against repeat offenders and levy fines payable to the person depicted in the actionable material. The bill also makes available a civil injunction to block or interrupt the distribution, including electronic distribution, of actionable material.

According to the author:

Child sex abuse material (CSAM) is rampant on social media. Too often, victims have no legal recourse for the online distribution of content depicting their abuse. These sexually exploited children are re-victimized every time a predator watches CSAM content. Often times, predators produce material where the victim is smiling. This leads to survivors worrying that people may think they are enjoying their abuse. Victims have testified that the worst part of the re-victimization process is knowing that the content may be used to normalize the abuse and groom future victims.

SB 646 gives victims standing in state court by codifying a federal statute that enables legal advocates to bring cases against social media companies that profit or benefit from the distribution of CSAM. In 2017, Congress passed the Fight Online Sex Trafficking Act that closed a loophole in law that gave platforms protection from liability when they facilitated CSAM distribution. Victim Advocates use Masha’s Law (2006) to seek restitution and hold platforms accountable for their culpability. Through this statute, victims are able to sue their abusers and their enablers, in federal court.

This bill seeks to provide victims the same standing in state court. Any person or entity who transmits CSAM is liable to be sued for damages under SB 646. SB 646 also requires that platforms list an agent who will be responsible for fielding requests to remove content. If the platform does not act within two business days, they will be liable to the civil remedies listed in Masha’s law. The platform must also create a method for contacting that agent. Platforms already are using hash values to locate and remove such content.

Any action taken must commence within 6 years of discovery or within 10 years of the victim turning 18, which ever is longer. In addition to any other damages awarded, statutory damages in the amount of two hundred thousand dollars ($200,000) shall be awarded to the prevailing plaintiff and will be paid by the defendant for failing to cease distribution of the material within two business days after notice. This amount will be adjusted for inflation in 2028 and every five years after that.

The California Catholic Conference writes in support:

Online sexual exploitation is a growing concern, especially on emerging social media such as Instagram, TikTok and OnlyFans. PornHub, the largest pornographic site in the world had to remove over 10 million pornographic videos in December 2020 because they did not verify users, could not confirm consent was obtained, and had numerous cases of reuploads of the real sexual abuse, rape, nonconsensual content, and sex trafficking of children, teenagers and adults.

This bill will help to deter traffickers and other bad actors from sharing sexually exploitive material of children and will empower survivors with the tools to have their images removed – helping them to recover their dignity and rebuild their lives.

• • • 1. Legal considerations

As with most of the legislation seeking to govern the moderation or prohibition of internet content, legal questions arise around whether the specific approach of any proposed law runs afoul of the First Amendment or is preempted by Section 230.

1. First Amendment

The First Amendment, as applied to the states through the Fourteenth Amendment, prohibits Congress or the states from passing any law “abridging the freedom of speech.”^[6] “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”^[7] However, while the amendment is written in absolute terms, the courts have created a handful of narrow exceptions to the First Amendment’s protections, including “true threats,”^[8] “fighting words,”^[9] incitement to imminent lawless action,^[10] defamation,^[11] and obscenity.^[12]

Expression on the internet is given the same measure of protection granted to in-person speech or statements published in a physical medium.^[13] Accordingly, a social media user may generally post content and comments free from government regulation, but may incur civil or criminal liability if their comment falls within one of the First Amendment exceptions. At the same time, social media platforms themselves—as private businesses—are not subject to the constraints of the First Amendment and may limit or prohibit users’ speech on their sites as they see fit.^[14]

The United States Supreme Court has held that posting on social networking and/or social media sites constitutes communicative activity protected by the First Amendment.^[15] As a general rule, the government “may not suppress lawful speech as the means to suppress unlawful speech.”^[16]

A constitutional challenge to a restriction on speech is generally analyzed under one of two frameworks, depending on whether the courts deem it to be “content neutral” or “content based,” i.e., targeting a particular type of speech. A law is content neutral when it “serves purposes unrelated to the content of the expression.”^[17] On the other hand, a law is content based when the proscribed speech is “defined solely on the basis of the content of the suppressed speech.”^[18]  

If a law is determined to be content neutral it will be subject to intermediate scrutiny, which requires that the law “be ‘narrowly tailored to serve a significant government interest.’ ”^[19] In other words, the law “‘need not be the least restrictive or least intrusive means of’ serving the government’s interests,” but “ ’may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.’ ”^[20] 

If a restriction on speech is determined to be content based, it will be subject to strict scrutiny.^[21] A restriction is content based “if it require[s] ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a violation has occurred.”^[22] Content-based restrictions subject to strict scrutiny are “presumptively unconstitutional.”^[23] A restriction can survive strict scrutiny only if it uses the least-restrictive means available to achieve a compelling government purpose.^[24]

Although this bill is a content-based regulation, as it requires examination of whether the content is “actionable material,” it arguably falls within a clear exception to the First Amendment.

The United States Supreme Court in Miller v. California, (1973) 413 U.S. 15, 24, established the prevailing three-prong test for determining whether certain material should be deemed obscenity and therefore unprotected speech.

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

However, the court revisited the issue when the alleged obscene material was CSAM:

The Miller standard, like its predecessors, was an accommodation between the State’s interests in protecting the “sensibilities of unwilling recipients” from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children.^[25]

Among the reasons laid out by the court are the states’s clear interest in safeguarding the physical and psychological well-being of minors; the fact that “distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children”; and the “value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis.”

The court then laid out the scope of this new exception and the modified Miller-standard to be applied:

There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age. The category of “sexual conduct” proscribed must also be suitably limited and described.

The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.^[26]

Here the material at issue is one of two things. The first is a visual depiction of a child’s intimate “body part or parts” or of the child “engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates.” This material arguably meets the Ferber standard and falls outside of First Amendment protection. The second category of actionable material requires content that already serves as the basis for criminal and civil penalties under Federal law, specifically that the images or depictions of the child are the basis, at least in part, of a predicate offense found in Masha’s law. Even those predicate offenses that do not require the actual existence of CSAM, have been upheld despite constitutional challenge.^[27]

It should also be noted that the United States Supreme Court in Ashcroft v. Free Speech Coalition, (2002) 535 U.S. 234, 239, ruled that the federal Child Pornography Prevention Act’s ban on virtual child pornography was unconstitutionally overbroad as it proscribed speech which was neither child pornography nor obscene. However, the bill here is distinct in that all forms of “actionable material” involve the depiction of an actual minor.

While the bill’s prohibitions, especially on distribution, “run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy,” there is a strong case that its restrictions will be found to meet constitutional muster in the likely litigation to follow any implementation of the law.

A coalition of business and technology groups, including the Computer and Communications Industry Association, believe the bill’s provisions that hold platforms liable for distributing illicit pictures of minors and other actionable material violates the First Amendment:

SB 646 will have a significant chilling effect on lawful speech and violates established First Amendment principles

As noted above, SB 646 raises several constitutional concerns and its overbreadth creates a significant chilling effect on lawful speech. For example, Section 2 of the bill creates a strong incentive to over-remove content any time a request is submitted. Platforms deal with millions of pieces of content every single day. If confronted with a notice to take down content, they will air on the side of caution and remove it due to the significant liability exposure. They will have no choice but to do this even if the content does not violate their policies because the risk is too high. Though well-intentioned, this bill will result in more lawful speech being removed and fewer online spaces for people to communicate and share ideas with one another.

1. Conflict with Section 230 of the Communications Decency Act, 47 U.S.C. § 230

In addition to the First Amendment, the other primary source governing content on social media is Section 230. Section 230 does not apply to the users of social media (or the internet generally), but rather applies to the platforms themselves. In the early 1990s, prior to the enactment of Section 230, two trial court orders—one in the United States District Court for the Southern District of New York, and New York state court—suggested that internet platforms could be held liable for allegedly defamatory statements made by the platforms’ users if the platforms engaged in any sort of content moderation (e.g., filtering out offensive material).^[28] In response, two federal legislators and members of the burgeoning internet industry crafted a law that would give internet platforms immunity from liability for users’ statements, even if they might have reason to know that statements might be false, defamatory, or otherwise actionable.^[29] The result—Section 230—was relatively uncontroversial at the time, in part because of the relative novelty of the internet and in part because Section 230 was incorporated into a much more controversial internet regulation scheme that was the subject of greater debate.^[30]

Section 230 begins with findings and a statement of policy that extol the value of the internet and the intention to let the internet develop without significant government regulation.^[31] The crux of Section 230 is then laid out in two parts. The first provides 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.”^[32] The second provides a safe harbor for content moderation, by stating that no provider or user shall be held liable because of good-faith efforts to restrict access to material that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”^[33]

Together, these two provisions give platforms immunity from any civil or criminal liability that could be incurred by user statements, while explicitly authorizing platforms to engage in their own content moderation without risking that immunity.

Section 230 specifies that it does not preempt federal criminal laws, but that “[n]o cause of action may be brought and no liability may be imposed under any State law that is inconsistent with this section.”^[34]

Section 230 uses terminology generally applicable in defamation cases (e.g., “publisher,” “speaker”), but courts interpreting Section 230 did not limit its application to the defamation context. Instead, courts have applied Section 230 in a vast range of cases to immunize internet platforms from “virtually all suits arising from third-party content.”^[35] Courts have even extended Section 230 immunity to situations where the platform’s moderator affirmatively solicited the information, selected the user’s statement for publication, and/or edited the content.^[36]

Relevant here, since its passage, Congress has created one exemption to Section 230 to allow online platforms (including social media platforms) to be held liable for online content promoting or facilitating sexual exploitation or sex trafficking of children.^[37] This exemption was enacted in 2018, as part of the Stop Enabling Sex Traffickers Act and the Allow States to Fight Online Sex Trafficking Act (SESTA-FOSTA) legislation package.^[38] It should be noted that the United States Government Accountability Office (GAO) found that SESTA-FOSTA made it more difficult for law enforcement to gather information about actual sex trafficking, and the main effect of it was to cause online platforms to shut down pages featuring legitimate activities for fear of liability.^[39]

Congress has also altered the liability of Section 230 with respect to hosting copyrighted material by allowing platforms to be held liable for users’ copyright violations unless the platform blocks access to alleged infringing material upon receiving a notice of infringement.^[40]

This bill imposes liability on an online platform if it fails to cease distribution of or fails to disable access to, actionable material within two business days of claimed infringement. This clearly places liability on platforms for the content of their users.

The Ninth Circuit has recently analyzed the scope of the SESTA-FOSTA exception:

In 2018, Congress amended section 230 by passing FOSTA. Pub. L. No. 115-164, 132 Stat. 1253. Among other things, FOSTA provides that section 230 immunity does not apply to certain sex trafficking claims. Pursuant to 47 U.S.C. § 230(e)(5)(A), “[n]othing in [section 230] . . . shall be construed to impair or limit . . . any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title.” In turn, this provision of FOSTA incorporates two sections of the Trafficking Victims Protection Reauthorization Act (TVPRA), 18 U.S.C. § 1589 et seq. First, section 1595 of the TVPRA provides a civil cause of action for violations of the federal trafficking laws. 18 U.S.C. § 1595(a). It permits trafficking victims to sue the perpetrators of their trafficking as well as anyone who “knowingly benefits . . . from participation in a venture which that person knew or should have known” was engaged in sex trafficking. Id.

Section 1591, on the other hand, is the federal criminal child sex trafficking statute. Like section 1595, section 1591 covers both perpetrators and beneficiaries of trafficking. Id. § 1591(a). However, the standard for beneficiary liability pursuant to section 1591 is higher: to be held criminally liable as a beneficiary, a defendant must have actual knowledge of the trafficking and must “assist[], support[], or facilitat[e]” the trafficking venture. Id. § 1591(e)(4).

In sum: websites are generally immune from liability for user-posted content, but that immunity does not cover civil child sex trafficking claims if the “conduct underlying the claim” violates 18 U.S.C. §1591.^[41]

The court concluded that “it is clear that FOSTA requires that a defendant-website violate the criminal statute by directly sex trafficking or, with actual knowledge, ‘assisting, supporting, or facilitating’ trafficking, for the immunity exception to apply.”^[42]

Based on this standard, the notice of claimed infringement, and the waiting period allowed for investigation, will have to be considered sufficient to put the operator of a website on notice of its distribution of actionable material in order to meet this threshold for liability to attach. A coalition of industry groups, including TechNet, does not believe it will fall within any exemption to Section 230:

SB 646 is preempted by Federal Law

Section 230 of the Communications Decency Act (47 U.S.C. §230) generally protects platforms from liability for content that users generate with limited exceptions. This protection enables platforms to host third party content and to moderate third-party content on their platforms without fear of liability.

Without the protections of Section 230, the internet ecosystem would be dramatically different with a limited ability for users to post, share, read, view, and discover the content of others.

Fortunately, Section 230 explicitly preempts state laws such as SB 646 that would conflict with this protection. This bill creates liability for platforms based on third party content. It would also impose liability for failure to remove content, which the Ninth Circuit has held falls squarely within the preemption of Section 230.1 Therefore, by imposing liability on platforms for their moderation decisions SB 646 conflicts with Section 230 and is likely preempted.

Micha Liberty of Liberty Law, the sponsor of this bill, argues the bill falls within the exception to Section 230:

Child pornography (or more appropriately named Child Sexual Abuse Material) is excluded from immunization otherwise provided by Section 230. 47 U.S.C. § 230(e)(l). Further, section 230 unambiguously proclaims that “it is the policy of the United States--to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.” 47 U.S.C. § 230(5).

Moreover, the United States Supreme Court has repeatedly recognized that the marketplace for child sex abuse material must be broadly targeted and eliminated finding repeatedly that “[c]hild pornography harms and debases the most defenseless of our citizens. Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet.” United States v. Williams, 553 U.S. 285, 307 (2008). “[E]veryone 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).

SUPPORT

Liberty Law (sponsor)
California Catholic Conference

Child USA

The Soaring Center

OPPOSITION

California Chamber of Commerce

Civil Justice Association of California

Computer & Communications Industry Association

Internet Coalition

NetChoice

TechNet

RELATED LEGISLATION

Pending Legislation:

SB 287 (Skinner, 2023) subjects social media platforms to civil liability for damages caused by their practices, affordances, designs, algorithms, or features, as provided. The bill provides a safe harbor where certain auditing practices are carried out. SB 287 is currently pending in the Senate Appropriations Committee.

SB 764 (Padilla, 2023) prohibits a social media platform from adopting or implementing a policy or practice related to the targeting of content to minors that prioritizes user engagement of minor users over the safety, health, and well-being of the minor users if the social media platform knows or, should know that it has caused harm to minor users or it is reasonably foreseeable that it will cause harm to minor users. SB 764 is currently pending before the Senate Judiciary Committee.

SB 845 (Stern, 2023) requires large social media platforms, as defined, to create, maintain, and make available to third-party safety software providers a set of real-time application programming interfaces, through which a child or a parent or legal guardian of a child may delegate permission to a third-party safety software provider to manage the child’s online interactions, content, and account settings on the large social media platform on the same terms as the child, and for other purposes. SB 845 is pending before the Senate Judiciary Committee.

AB 955 (Petrie-Norris, 2023) would make the sale of fentanyl on a social media platform a crime punishable by imprisonment in a county jail for three, six, or nine years (higher than the existing penalty for selling fentanyl, which is imprisonment in a county jail for two, three, or four years). AB 955 is pending before the Assembly Public Safety Committee.

Prior Legislation:

SB 1056 (Umberg, Ch. 881, Stats. 2022) required a social media platform, as defined, to clearly and conspicuously state whether it has a mechanism for reporting violent posts, as defined; and allows a person who is the target, or who believes they are the target, of a violent post to seek an injunction to have the violent post removed.

AB 587 (Gabriel, Ch. 269, Stats. 2022) required social media companies, as defined, to post their terms of service and report certain information to the Attorney General on a quarterly basis.

AB 1628 (Ramos, Ch. 432, Stats. 2022) required a social media platform, as defined, that operates in this state to create and publicly post a policy statement including specified information pertaining to the use of the platform to illegally distribute controlled substances, until January 1, 2028.

AB 2273 (Wicks, Ch. 320, Stats. 2022) established the California Age-Appropriate Design Code Act, placing a series of obligations and restriction on businesses that provide online services, products, or features likely to be accessed by a child.

AB 2408 (Cunningham, 2022) would have prohibited a social media platform from using a design, feature, or affordance that the platform knew, or which by the exercise of reasonable care it should have known, causes child users to become addicted to the platform. AB 2408 died in the Senate Appropriations Committee.

AB 2571 (Bauer-Kahan, Ch. 77, Stats. 2022) prohibits firearm industry members from advertising or marketing, as defined, firearm-related products to minors. This bill restricts the use of minors’ personal information in connection with marketing or advertising firearm-related products to those minors.

AB 2879 (Low, Ch. 700, Stats. 2022) requires a social media platform to disclose its cyberbullying reporting procedures in its terms of service and to have a mechanism for reporting cyberbullying that is available to individuals whether or not they have an account on the platform.

AB 1114 (Gallagher, 2021) would have required a social media company located in California to develop a policy or mechanism to address content or communications that constitute unprotected speech, including obscenity, incitement of imminent lawless action, and true threats, or that purport to state factual information that is demonstrably false. AB 1114 died in the Assembly Arts, Entertainment, Sports, Tourism, and Internet Media Committee.

SB 388 (Stern, 2021) would have required a social media platform company, as defined, that, in combination with each subsidiary and affiliate of the service, has 25,000,000 or more unique monthly visitors or users for a majority of the preceding 12 months, to report to the Department of Justice by April 1, 2022, and annually thereafter, certain information relating to its efforts to prevent, mitigate the effects of, and remove potentially harmful content. This bill died in the Senate Judiciary Committee.

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1. Rhiannon Williams, The US now hosts more child sexual abuse material online than any other country (April 26, 2023) MIT Technology Review, https://www.technologyreview.com/2022/04/26/1051282/the-us-now-hosts-more-child-sexual-abuse-material-online-than-any-other-country/. All internet citations are current as of April 17, 2023. ↑

2. Ibid. ↑

3. Samantha Cole, Facebook Reported 20 Million Instances of Child Sexual Abuse in 2020 (February 24, 2021) Motherboard, Tech by Vice, https://www.vice.com/en/article/7k9an4/facebook-pornhub-child-abuse-content-ncmec-report-2020. ↑

4. See fn. 1. ↑

5. Ibid. ↑

6. U.S. Const., 1st & 14th amends. ↑

7. Ashcroft v. American Civil Liberties Union (2002) 535 U.S. 564, 573. ↑

8. Snyder v. Phelps (2011) 562 U.S. 443, 452. ↑

9. Cohen v. California (1971) 403 U.S. 15, 20. ↑

10. Virginia v. Black (2003) 538 U.S. 343, 359. ↑

11. R.A.V. v. St. Paul (1992) 505 U.S. 377, 383. ↑

12. Ibid. ↑

13. Reno v. ACLU (1997) 521 U.S. 844, 870. ↑

14. E.g., Hudgens v. NLRB (1976) 424 U.S. 507, 513. Some have argued that certain social media platforms are so essential to the freedom of expression that they should be treated as common carriers subject to the First Amendment. ↑

15. E.g., Packingham v. North Carolina (2017) 137 S.Ct. 1730, 1735-1736. ↑

16. Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 255; see also United States v. Alvarez (2012) 567 U.S. 709, 717 (Supreme Court “has rejected as ‘startling and dangerous’ a ‘free-floating test for First Amendment coverage…[based on] an ad hoc balancing of relative social costs and benefits’ ” [alterations in original]). ↑

17. Ward v. Rock Against Racism (1989) 491 U.S. 781, 791.   ↑

18. FCC v. League of Women Voters (1984) 468 U.S. 364, 383.  ↑

19. Packingham, supra, 137 S.Ct. at p. 1736. ↑

20. McCullen v. Coakley (2014) 573 U.S. 464, 486 (McCullen). ↑

21. Id. at p. 478.  ↑

22. Id. at p. 479. ↑

23. Reed v. Town of Gilbert (2015) 135 S.Ct. 2218, 2226 (Reed). ↑

24. United States v. Playboy Entertainment Group (2000) 529 U.S. 803, 813. ↑

25. New York v. Ferber (1982) 458 U.S. 747, 756. ↑

26. Id. at 764-65. ↑

27. United States v. Williams (2008) 553 U.S. 285, 307 (upholding 18 U.S.C. § 2252A). ↑

28. See Cubby, Inc. v. Compuserve, Inc. (S.D.N.Y. 1991) 776 F.Supp. 135, 141; Stratton Oakmont v. Prodigy Servs. Co. (N.Y. Sup. Ct., May 26, 1995) 1995 N.Y. Misc. LEXIS 229, *10-14. These opinions relied on case law developed in the context of other media, such as whether book stores and libraries could be held liable for distributing defamatory material when they had no reason to know the material was defamatory. (See Cubby, Inc., 776 F. Supp. at p. 139; Smith v. California (1959) 361 U.S. 147, 152-153.) ↑

29. Kosseff, The Twenty-Six Words That Created The Internet (2019) pp. 57-65. ↑

30. Id. at pp. 68-73. Section 230 was added to the Communications Decency Act of 1996 (title 5 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56), which would have imposed criminal liability on internet platforms if they did not take steps to prevent minors from obtaining “obscene or indecent” material online. The Supreme Court invalidated the CDA, except for Section 230, on the basis that it violated the First Amendment. (See Reno, supra, 521 U.S. at p. 874.) ↑

31. 47 U.S.C. § 230(a) & (b). ↑

32. Id., § 230(c)(1). ↑

33. Id., § 230(c)(1) & (2). ↑

34. Id., § 230(e)(1) & (3). ↑

35. Kosseff, supra, fn. 13, at pp. 94-95; see, e.g., Doe v. MySpace Inc. (5th Cir. 2008) 528 F.3d 413, 421-422; Carfano v. Metrospalsh.com, Inc. (9th Cir. 2003) 339 F.3d 1119, 1125; Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 333-334. ↑

36. See, e.g., Jones v. Dirty World Entertainment Recordings LLC (6th Cir. 2014) 755 F.3d 398, 415; Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1030-1031; cf. Blumenthal v. Drudge (D.D.C. 1998) 992 F.Supp. 44, 51-52. ↑

37. Id., § 230(e)(5). ↑

38. See P.L. 115-164, 113 Stat. 1253. ↑

39. GAO Report to Congressional Committees, Sex Trafficking: Online Platforms and Federal Prosecutions, No. 21-385 (June 2021), pp. 20-25, https://www.gao.gov/assets/gao-21-385.pdf. ↑

40. See 17 U.S.C. § 512, the Digital Millennium Copyright Act (DCMA). ↑

41. Does v. Reddit, Inc. (9th Cir. 2022) 51 F.4th 1137, 1140-41. ↑

42. Id. at 1145. ↑