Seeking Justice for Victims of CSAM Despite Section 230

Seeking Justice for
Victims of CSAM
Despite CDA 230
James Marsh
Jennifer Freeman
Maggie Mabie

Child Pornography/CSAM
• Federal Law 18 U.S.C. 2256(8): Any visual depiction,
including any photograph, film, video, picture
or computer/computer-generated image or picture,
whether made or produced by electronic, mechanical or
other means, of sexually explicit conduct involving a
minor.
• “Sexually explicit conduct” includes vaginal and
anal intercourse, oral sex, masturbation, bestiality,
“sadistic or masochistic abuse,” and the “lascivious
exhibition of the genitals or pubic area.”

The Six-Prong Dost Test
“Lascivious exhibition” is not defined by statute, but most
of the federal courts that have addressed the issue
applied a well-established six-prong legal standard U.S.
v. Dost, 636 F. Supp 828 (SDCA 1986)
(1) Focal point of the visual depiction is on the child’s
genitalia or pubic area;
(2) Setting of the visual depiction is sexually suggestive;
(3) Child is depicted in an unnatural pose, or in
inappropriate attire;
(4) Child is fully or partially clothed, or nude;
(5) Suggests sexual coyness or a willingness to engage
in sexual activity;
(6) Intended or designed to elicit a sexual response in the
viewer.

“I am horrified by the
thought that other
children will probably be
abused because of my
pictures. Will someone
show my pictures to
other kids … then tell
them what to do. Will
they see me and
think it’s okay for them
to do the same thing?”

Federal CSAM Remedies
• 18 U.S.C. 2259 — federal criminal remedy (restitution)
• 18 U.S.C. 3771 — Crime Victims’ Rights Act of 2004
• 18 U.S.C. 3509 — Child Victims’ Rights Act (privacy
provisions)
• 18 U.S.C. 2255 — federal civil remedy (Masha’s Law)
• 18 U.S.C. 2252A(f) — additional federal civil remedy
• 18 U.S.C. 3663(a)(3) — Victim and Witness Protection Act of
1982
• 18 U.S.C. 3663A — Mandatory Restitution to Victims of
Certain Crimes

• “[u]nlike other forms
of exploitations, this
one is never ending.
Everyday people are
trading and sharing
videos of me as a little
girl being raped in the
most sadistic ways.”

“[e]veryday of my life I live
in constant fear that
someone will see my
pictures and recognize me
and that I will be humiliated
all over again. It hurts me to
know someone is looking
at them ― at me ― when I
was just a little girl being
abused for the camera.”
8

Roadmap
1 3 5
6
4
2
Chiradio (2012)
Kearney (2012)
Paroline (2012)
Wright (2012)
Aumais (2011)
Lundquist
(2013)
Burgess (2012) Gamble (2013)
Proctor (2013)

Roadmap
7 9 11
DC
10
8
Laranta
(2012)
Kennedy (2012)
Cantrelle (2012)
McDaniel (2011)
Webb (2011)
Fast (2013) Benoit (2013) Monzel (2011)

Restitution Timeline
14
DEC
NOV
2018
SEP
AUG
2015 - 2017
JUN
MAY
2014
MAR
FEB
2011 - 2013
Lobbying for the Amy
Vicky and Andy Act
Road of Circuit Splits
to the Supreme Court
Paroline Decision
on April 23, 2014
AVAA passed
December 7,
2018

Paroline Majority
What, if any, causal relationship or nexus between the defendant’s
conduct and the victim’s harm or damages must the government or
the victim establish in order to recover restitution under 18 U.S.C.
2259?
• Amount should not be severe;
• Amount should not be token, nominal, or trivial;
• Award should be reasonable and circumscribed;
• Victim should someday collect for all her child pornography
losses;
• “Rough guideposts” with discretion and sound judgment, but
no “caprice.”
A court should order restitution in an amount that comports with the
defendant’s relative role in the causal process that underlies the
victim’s general losses.

Paroline Dissent
“Unfortunately, the restitution statute that Congress wrote for child
pornography offenses makes it impossible to award that relief to
Amy in this case.… Congress set up a restitution system sure to
fail in cases like this one… [I]t would be a mistake…to lead readers
to conclude that…Congress has done justice for victims of child
pornography. The statute as written allows no recovery; we ought
to say so, and give Congress a chance to fix it.”

Paroline Factors
• the number of past criminal defendants found to have
contributed to the victim’s losses;
• reasonable predictions of the number of future offenders likely
to be caught and convicted for crimes contributing to the
victim’s losses;
• estimates of the broader number of offenders involved (most
of whom will never be convicted);
• whether the defendant reproduced or distributed images of
the victim;
• whether the defendant had any connection to the initial
production of the images;
• how many images of the victim the defendant possessed.
Paroline v. U.S., 572 U.S. 434, 460 (2014)

AVAA TIMELINE
April 23, 2014 – United State Supreme Court Paroline v. United States decided
May 7, 2014 – Amy and Vicky Act introduced in Senate
June 26, 2014 – Amy and Vicky Act introduced in the House
July 30, 2014 – US Sentencing Commission: vast majority criminals pay zero restitution
December 31, 2014 – AVA dies at the end of the Congressional session
January 28, 2015 – AVA reintroduced in the House and Senate
February 5, 2015 – AVA clears the Senate Judiciary Committee with bipartisan support
February 11, 2015 – Senate passes the AVA 98-0
March 19, 2015 – House Judiciary Crime Subcommittee holds hearing on the AVA
December 31, 2016 – AVA dies again at the end of the Congressional session
November 16, 2017 – Amy Vicky and Andy Act Introduced in the Senate (S.B. 2152)
January 23, 2018 – Passed the Senate by Unanimous Consent
September 28, 2018 – Passed the House by Unanimous Consent
November 15, 2018 – Passed the Senate by Unanimous Consent
December 7, 2018 – Signed by the President and becomes Public Law 115-299

U.S. v. Mobasseri, 2020 WL
5758007, at *2 (6th Cir. 09-
28-20): Minimum Restitution
Set the “full
amount” of each
victim’s losses
proximately
caused by the
offense;
Establish
baseline
restitution
amount
for each
victim;
Analyze
the case
pursuant
to the
Paroline
factors
19
consider
additional
factors

Restitution
Requests to Civil
Recovery
20
3509(M)
CIVIL
CRIMINAL OFFENSE
ASSET EVALUATION
RESTITUTION
COLLECTION
Offenders charged and victims
Identified by NCMEC
Restitution sought and ordered at
conviction
Retained counsel/ PSR evalution
PeopleMap and property search
Confirm client identities and sexual
content
File civil claim

Eliminating Limits to
Justice
Public Law No: 117-176 (09/16/2022) removes the Statute
of Limitations on 18 U.S.C. 2255.
Not a window.
Forever extends the statute of limitations for those whose
claims had not lapsed on September 15, 2022.
Essentially, if the victim was born after September 15,
1994, or benefitted from the discovery provision or was
victim of an images-based crime that occurred within
the past ten years (after September 15 ,2022) then the
statute of limitations vanished in thin air on September
16, 2022.

Case Law for Image-
Based Offenses
Doe v. Boland 698 F.3d 877, 882 (6th Cir. 2012)
Lily v. Feuchtener, No. 219CV00352RFBEJY, 2020
WL 10693186, at *2 (D. Nev. Oct. 26, 2020)
Amy et al v. Randall Steven Curtis, United States
District Court, Northern District of California, 2019
WL 4141926
“Lily”, et al., v. Kenneth Breslin, United States
District Court, Northern District of California, No.
4:19-cv-01668-YGR.

"Hands on" v. "Image based"
Singleton v. Clash, 951 F. Supp. 2d 578, 590–91 (S.D.N.Y. 2013),
aff'd sub nom. S.M. v. Clash, 558 F. App'x 44 (2d Cir. 2014).
"The plaintiffs also argue that Congress intended to allow plaintiffs
to bring claims based on a delayed “connection to the injury”
theory because Congress amended Section 2255 in 2006 to
clarify that Section 2255 is available “regardless of whether
the injury occurred while such person was a minor.” *591 Pub.
L. 109–248, 120 Stat. 650. However, legislative
history indicates that the clause was added to account
for situations in which violations that first occurred when
a plaintiff was a minor were re-perpetrated after a plaintiff
reached adulthood. See Sexual Exploitation of Children over
the Internet: What Parents, Kids and Congress Need to Know
about Child Predators: Hearing Before the H. Subcomm. on
Oversight & Investigations, 109th Cong. 456–57 (2006). […]"

"Hands on" v. "Image based"
Singleton v. Clash, 951 F. Supp. 2d 578, 590–91 (S.D.N.Y. 2013),
aff'd sub nom. S.M. v. Clash, 558 F. App'x 44 (2d Cir. 2014).
"[…] For example, if a would-be defendant
downloaded child pornography that is twenty years old, the
“child” who is no longer a minor may bring a claim under
Section 2255 based upon this new violation by the would-
be defendant. See Id.; Boland, 698 F.3d at 881 (“A
child abused through a pornographic video might have one
§ 2255 claim against the video's creator as soon as it
is produced and another against the distributor who sells a
copy of the video twenty years later.”)"

No Statute of Limitations
2252 (Certain activities relating to material involving the sexual
exploitation of minors);
2252A (Certain activities relating to material constituting
or containing child pornography);
2421 (promotion or facilitation of prostitution and
reckless disregard of sex trafficking);
2422 (Coercion and enticement - prostitution or sexual activity);
2423 (transportation of minors);

No Statute of Limitations
1589 (forced labor);
1590 (trafficking);
1591 (sex trafficking by force fraud or coercion);
2241(c) (aggravated sexual abuse);
2242 (sexual abuse);
2243 (sexual abuse of a minor, a ward, or an individual in Federal
custody);
2251(sexual exploitation) ;
2251A (selling or buying children);

“Any person who, while a minor, 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 this title
and who suffers personal injury as a result of such violation,
regardless of whether the injury occurred while such person
was a minor, may sue in any appropriate United States District
Court and shall recover 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.”
18 USC 2255 Predicates
27

• Non-dischargeable in bankruptcy – violations of
child pornography statute are “willful and
malicious injuries”
• Personal injury requirement satisfied as a
matter of law and child pornography results
in de facto personal injury.
Amy v. Curtis, 2020 WL 5365979 (N.D.
Cal. Sept. 8, 2020) (extending In re Boland, 946
F.3d 335 (6th Cir. 2020)
In re Boland, 946 F.3d 335
(6th Cir. 2020)
28

“No provider or user of an interactive computer service
shall be treated as the publisher or speaker of
any information provided by another information content
provider.” [47 U.S.C. 230]
Websites and social media sites still enjoy broad
immunity with other causes of action outside of FOSTA.
Cases turn on whether the website’s own actions go from
being an interactive computer service to an information
content provider.
Communications Decency
Act of 1996
29

Added 18 U.S.C. 2421A – Promotion or facilitation of prostitution
and reckless disregard of sex trafficking
Civil liability under Section 2421A only attaches when an ISP
engages in an “aggravated violation” by:
promoting or facilitating the prostitution of 5 or more persons; or
acting in reckless disregard of the fact that such conduct
contributed to sex trafficking in violation of
18 U.S.C. 1591(a)
FOSTA/SESTA
30

Requires a party to “knowingly”
• “recruit, entice, harbor, transport, provide, obtain, advertise,
maintain, patronize, solicit” OR
• “benefit, financially or by receiving anything of value, from
participation in a venture which has engaged in an act…”
knowing, or, except where the act constituting the violation of
paragraph (1) is advertising, in reckless disregard of the fact,
that means of force, threats of force, fraud, coercion described in
subsection (e)(2)…or that the person has not attained the age of
18 years and will be caused to engage in a commercial sex act.
18 USC 1591
31

Specific Exemption to Section 230 [47 U.S.C. 230(e)(5)(A)] to a
violation of 18 U.S.C. 1591 – Sex trafficking of children
An individual who is a victim of a violation of this chapter may
bring a civil action against the perpetrator (or whoever
knowingly benefits, financially or by receiving anything of value
from participation in a venture which that person knew or should
have known has engaged in an act in violation of this chapter)
in an appropriate district court of the United States and may
recover damages and reasonable attorneys fees (including
punitive damages).
A state attorney general as parens patriae may bring a civil
action “to obtain appropriate relief.”
18 USC 1595
32

Revised EARN IT introduced January 31,
2022 (53 pages)
Passed Judiciary Committee February 10,
2022
• Commission creates best practices
• Exempts Masha’s Law from Section 230
for predicates under 18 U.S.C. 2252 /
2252A
• BILLS-117s3538is.pdf (congress.gov)
Earn It Act 2022 – S.3538
33

Update federal statutes to use the term CSAM The
term child pornography fails to describe the true
nature of the videos and images and undermines
the seriousness of the abuse.
• Remove immunity for social media and technology
companies that knowingly facilitate or profit from the
distribution of CSAM on their platforms.
• Establish commission to create recommendations
and voluntary best practices
Earn It Act 2022 – S.3538
34

Case Law
M.A. v. Wyndham Hotels & Resorts, Inc., 425 F. Supp. 3d 959
(S.D. Ohio 2019) (The “language of § 1591 differs from the
language of § 1595” in that “the former does not have a
constructive knowledge element manifested by ‘should have
known’ language.”).
Doe v. Twitter, Inc., 2021 WL 3675207 (N.D. Cal. Aug. 19, 2021)
(where a plaintiff seeks to impose civil liability under Section 1595
based on a violation of Section 1591(a)(2), the “known or should
have known” language of Section 1595 applies.
Doe #1 v. MG Freesites, LTD, 2022 WL 407147(N.D. Ala. Feb. 9,
2022) (allowing victims to bring civil claims against “whoever
knowingly benefits, financially or by receiving anything of value
from participation in a venture which that person knew or should
have known has engaged in an act in violation of this chapter”).

Case Law
S.Y. v. Naples Hotel Co., 2020 WL 4504976 (M.D. Fla. Aug. 5,
2020) (beneficiary liability for Section 1595 claims)
M.H. v. Omegle.com, LLC, 2022 WL 93575 (M.D. Fla. Jan. 10,
2022). (whether CDA 230 preempts 2255)
Doe v. Red Roof Inns, Inc. et al., 21 F F.4th 714 (11th Cir. 2021)
(beneficiary liability for specific knowledge of human
trafficking)

Case Law
Lemmon v. Snap, Inc., 995 F.3d 1085, 1094 (9th Cir.
2021).
The Defendants’ product design and architecture
caused D.H.’s harm and her claims against the
Defendants rest entirely on “nothing more than
[their] own acts.”
A.M. v. Omege.com, LLC. No. 3:21-CV-01674-MO, 2022
WL 2713721, at *4 (D. Or. July 13, 2022).
“Plaintiff's contention is that the product is
designed a way that connects individuals who
should not be connected.”

40
Whistle-
blowers
Senior executives consistently limit
the funds available for child
protection design efforts by
focusing on the company’s “return
on investment.”
Facebook facilitates harm to
children because the product
design allows predators to “use
code words to
describe the type of child, the type
of sexual activity...[and] they use
Facebook’s encrypted
Messenger service or WhatsApp to
share these codes, which change
routinely.”

DOJ urged Zuckerberg
to “embed the safety of
the public in system
designs” and “act
against illegal content
effectively with no
reduction to safety”
41

D.H. v. Meta et. al.,
No. 3:22-cv-04888,
2022 (NDCA)

PhotoDNA creates a unique digital signature (known as a “hash”)
of an image which is then compared against signatures (hashes)
of other photos to find copies of the same image. When matched
with a database containing hashes of previously identified illegal
images, PhotoDNA is an incredible tool to help detect, disrupt
and report the distribution of child exploitation material.
PhotoDNA is not facial recognition software and cannot be used
to identify a person or object in an image. A PhotoDNA hash is
not reversible, and therefore cannot be used to recreate an
image.

20,000,000
reports to NCMEC in 2020 alone. If Meta continues
to design unsafeproducts in a way to be even more
unsafe for children, then over 70% of these reports
will be lost and child abusers undetected.

Anatomy of a Case
How to Seize a
Cell Phone --
Using a CSAM
Injunction --
2255 and 2252A
49

Jones v. Smith, 18-CV-05644,
Order (S.D.NY. Filed June 22, 2018)
(injunction for court ordered
custodian to take possession of
contraband ridden cellphone)

51
Equitable Remedy Under 218 U.S.C. 255
and 2252A:
2255 – “The court may also award …
such other preliminary and
equitable relief as the court
determines to be appropriate.”
2252A(f)(2) –"In any action
commenced in accordance with
paragraph (1), the court may
award appropriate relief, including
(A) temporary, preliminary, or
permanent injunctive relief….”

Questions to ask – when you don’t
know what you don’t know –
Video or photograph?
How many images?
Devices?
Deleted?
Backup?
Distribution?
52

18 USC 2255(b) –
“Statute
of Limitations. There
shall be no time limit for
the filing of a complaint
commencing an action
under this section.”

54
Questions to ask – when you don’t know what
you don’t know –
Video or photograph?
How many images?
Deleted? Was deletion permanent or just to
phone/computer cache?
Backup?
Distribution?

18 USC 2255(b) –
“Statute of Limitations.
There shall be no time
limit for the filing of a
complaint commencing
an action under this
section.”

56
Other Considerations –
Report to Law Enforcement?
- Timing
- Control
- Confidentiality
- Possible criminal exposure

Seeking Justice for Victims of CSAM Despite Section 230

Seeking Justice for Victims of CSAM Despite Section 230

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Seeking Justice for Victims of CSAM Despite Section 230