FOSTA, Mens Rea and the Thin Margin Defining Sex Trafficking Liability

K-Brooks’ parting missive is lengthy, imbued throughout both with nostalgia for the passion project from which he’s walking away – and with his sense that his site has been unfairly targeted as part of a sweeping attack on any website that can be construed as a tool for sex trafficking.

While acknowledging that the site had its “lowlights,” K-Brooks noted that “virtually every tool “can be used for good or for evil, and that is especially true of communication tools, due to their innate flexibility.”

“The telephone can be used to wish your grandmother ‘happy birthday’, but it can also be used to call in a bomb threat,” he observed. “There can be no honest accounting of Omegle without acknowledging that some people misused it, including to commit unspeakably heinous crimes.”

Those heinous crimes included the sexual exploitation and sexual abuse of minors, crimes which led Omegle to become subject of lawsuits filed using claims facilitated by the passage of the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) of 2018, the controversial statute that created a carve-out to the immunity offered to online platforms through Section 230 of the Communications Decency Act.

To be sure, Omegle had a much larger problem with sexual exploitation than K-Brooks’ parting letter acknowledges. In 2022, the National Center for Missing and Exploited Children’s (NCMEC) CyberTipline reportedly received 608,601 reports of child exploitation relating to Omegle – a massive total, even assuming many of the reports were duplicate.

Shutting down Omegle was part of a settlement agreement reached in A.M v. Omegle, a lawsuit brought by a victim of “sextortion” on the platform, who was a minor when the crime occurred. In an update to his initial post, K-Brooks referenced the lawsuit by thanking A.M. for “opening my eyes to the human cost of Omegle,” linking off to the second amended complaint filed by the plaintiff.

The point of this post is not to bemoan the closure of Omegle.com, or to suggest the site shouldn’t have been targeted with a lawsuit. The point is to note what might seem a small detail in the legal issues underpinning the case, but which could make the difference between getting shut down and continuing to operate for other platforms which might face similar claims, albeit in different factual circumstances.

As noted by Quinta Jurecic, a senior editor for Lawfare, the story of Omegle is “in significant part, a story about debates over Section 230’s liability shield, which critics argue allows bad actors online to avoid responsibility for the sometimes horrific behavior that takes place on their platforms.”

“If you take this view, then the shutdown of Omegle looks like a victory,” Jurecic continues. “The problem, though, is that rolling back the statute’s immunity protections also risks encouraging more responsible platforms to shut down wide swaths of harmless speech online, lest they risk the litigation that Omegle faced—the same dynamic that led Congress to pass Section 230 in the first place.”

When it comes to sex trafficking claims, whether Section 230 protects a platform from liability for the actions of third parties who use the platform can hinge on a question that seems to be dividing the courts hearing such cases – the question of what is the proper mens rea standard for the court to apply.

As Jurecic notes, the judge hearing A.M v. Omegle dismissed two of the claims against Omegle.

“The first of those claims, under the new civil cause of action created alongside § 2421A, (Judge) Mosman tossed out because the text of the statute does not apply retroactively—possibly thanks to the law’s poor drafting,” Jurecic writes. “The second claim sought to use FOSTA’s Section 230 carve-out to bring a civil claim against Omegle under state law. Mosman dismissed this as well, on the grounds that the carve-out is explicitly limited to federal civil actions under 18 U.S.C. § 1595 and certain state criminal charges.”

It was the lawsuit’s third claim where things got tricky with respect to the applicable mens rea standard, Jurecic observes.

“The third claim, though—seeking a civil remedy under § 1595—the judge ultimately allowed to move forward,” Jurecic notes. “In terms of understanding FOSTA’s impact, it’s here that A.M. v. Omegle becomes important—and complicated. The reason why has to do with the mens rea standard for § 1595 claims. And the reason for that has to do, again, with FOSTA’s confusing drafting.”

FOSTA amended Section 230 to prevent the statute’s immunity from covering “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.”

As Jurecic notes in her article, the problem is that § 1595 and § 1591 have different mens rea standards, raising the question of whether the standard is the lower bar required under § 1595 – in which the plaintiff must show the defendant “knew or should have known” that they were benefitting from sex trafficking – or the higher standard required under § 1591, which requires actual knowledge of sex trafficking on the part of the defendant.

As Jurecic writes, “given that FOSTA establishes a Section 230 exemption for § 1595 claims ‘if the conduct underlying the claim constitutes a violation of section 1591’,” the question becomes “do plaintiffs bringing those claims need to meet only the lower § 1591 standard, or the higher § 1595 standard?”

“This question matters a great deal both for plaintiffs seeking to bring FOSTA claims—who would benefit from a lower standard—and for websites worried about being tied up in litigation, which would rather have a higher, more defendant-friendly standard for civil claims,” Jurecic adds.

Thus far, different courts have come to different conclusions about which mens rea standard to apply when considering civil claims are filed alleging a violation of FOSTA. In the Omegle case, prior to the settlement being reached, the plaintiff amended her complaint to assert that Omegle “knowingly introduces children to predators causing children to be victims of sex acts,” a claim which, if proven at trial, would satisfy the higher mens rea standard.

As two other Lawfare writers, Danielle Citron and the site’s Editor-in-Chief Benjamin Wittes, observed in 2017 “Omegle is not exactly a social media site for sexual predators, but it is fair to say that a social network designed for the benefit of the predator community would look a lot like Omegle.”

In other words, Omegle didn’t fit the mold of a site unreasonably taken down by FOSTA. But if the courts lower the bar on mens rea to match that of § 1595, it’s not hard to imagine sites that are far less objectionable – and far more responsible – meeting the same fate.

Gavel photo by Ekaterina Bolovtsova from Pexels