Doe v. KIK Interactive, Inc.

482 F.Supp.3d 1242

Jane DOE, a minor, Plaintiff,

v.KIK INTERACTIVE, INC., a Canadian corporation, and Medialab.AI Inc., a Delaware corporation, Defendants.

CASE NO. 20-60702-CIV-SINGHAL

United States District Court, S.D. Florida.

Signed August 31, 2020

Bruce Prober, The Law Offices of Bruce Prober, P.A., Ft. Lauderdale, FL, for Plaintiff.

David Houska, Pro Hac Vice, Michael Graham Rhodes, Pro Hac Vice, Cooley LLP, San Francisco, CA, Nicole K. Atkinson, Gunster Yoakley & Stewart, West Palm Beach, FL, for Defendants.

ORDER

RAAG SINGHAL, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Defendants’ Motion to Dismiss (DE [24]). Plaintiff, a minor proceeding pseudonymously, has filed a Complaint (DE [1]) seeking damages from Defendants, Kik Interactive, Inc. and Medialab AI Inc.¹ under the Trafficking Victims Protections Act ("TVPA"), 18 U.S.C. § 1595(a). Defendants moved to dismiss arguing they are immune from suit or alternatively, that Plaintiff has failed to state a claim upon which relief can be granted. Plaintiff has filed a memorandum in opposition (DE [29]) and Defendant has filed its reply memorandum (DE [33]). For the reasons set forth below, Defendants’ Motion to Dismiss (DE [24]) is granted.

I. BACKGROUND

Defendants own and operate a web-based interactive service known as Kik Interactive or "Kik." According to Plaintiff, Kik is marketed to teenagers and young adults for purposes of sending messages to other users. (Compl. ¶ 25-26). The Complaint alleges multiple instances where adult users of Kik have used the service to contact and solicit sexual activity with minors, with some of those contacts resulting in death of the minors. (Compl. ¶ 15-23). Plaintiff alleges that Defendants have knowledge that sexual predators use its service to prey on minors but have failed to provide any warnings or enact policies to protect minors from such abuses. (Compl. ¶ 45).

Plaintiff alleges that in July 2019 numerous adult male users of Kik ("Identified Kik Users") solicited her and convinced her to take and send them sexually graphic pictures of herself using Kik. (Compl. ¶ 15-23). She also alleges these adult males sent her sexually explicit photographs via Kik.² (Id. ) Her father found the photographs on her cellphone and computer tablet and reported the incidents to the police. (Id. ). The cellphone and tablet were turned over to the Florida Department of Law Enforcement. (Id. ).

Plaintiff filed suit under the civil remedy statute, Trafficking Victims Protection Act, 18 U.S.C. § 1595. She alleges that Defendants are liable for damages for knowingly "participat[ing] in IDENTIFIED KIK USERS’ venture in violation of 18 U.S.C. § 1591 by benefiting from, and knowingly facilitating (by not implementing policies sufficient to combat a known problem), the venture in which IDENTIFIED KIK USERS used Kik Messenger in the interstate commerce to subject Jane Doe to sex trafficking." (Compl. ¶ 42). She also alleges Defendants "knew, or were in reckless disregard of the facts, that it was the practice of IDENTIFIED KIK USERS to utilize Kik Messenger to furnish harmful materials such as pictures of men's genitalia to Jane Doe and subject Jane Doe to sex trafficking ... [but] continued to market Kik Messenger to underage users without a sufficient warning and implementation of sufficient polices to protect the underage users of Kik Messenger." (Compl. ¶ 43, 44).

Defendants move to dismiss on two grounds. First, they argue immunity from suit pursuant to the Computer Decency Act ("CDA"), 47 U.S.C. § 230(a) ; second, for failure to state a claim under 18 U.S.C. § 1595(a).

II. LEGAL STANDARDS

A. Motion to Dismiss Standards.

At the pleading stage, a complaint must contain "a short and plain statement of the claim showing the [plaintiff] is entitled to relief." Fed. R. Civ. P. 8(a). Although Rule 8(a) does not require "detailed factual allegations," it does require "more than labels and conclusions"; a "formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To survive a motion to dismiss, "factual allegations must be enough to raise a right to relief above the speculative level" and must be sufficient "to state a claim for relief that is plausible on its face." Id. at 555, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Auth. , 556 U.S. 449, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009).

In considering a Rule 12(b)(6) motion to dismiss, the court's review is generally "limited to the four corners of the complaint." Wilchombe v. TeeVee Toons, Inc. , 555 F.3d 949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas Cty. , 285 F.3d 1334, 1337 (11th Cir. 2002) ). In reviewing the complaint, the court must do so in the light most favorable to the plaintiff, and it must generally accept the plaintiff's well-pleaded facts as true. See Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Am. United Life Ins. Co. v. Martinez , 480 F.3d 1043, 1057 (11th Cir. 2007). But "[c]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Jackson v. Bellsouth Telecommunications , 372 F.3d 1250, 1262 (11th Cir. 2004) (citation omitted); see also Iqbal, 129 S. Ct. at 1949 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions").

B. Immunity Under the Communications Decency Act

Defendants argue that they are immune from suit under the Communications Decency Act ("CDA"), 47 U.S.C. § 230.

Section 230, entitled "Protection for private blocking and screening of offensive material," begins with a list of "Findings" and "Policy":

(a) Findings

The Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

(2) These services offer users a great deal of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3) The internet and other interactive computer services offer a forum for a true diversity of public discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of governmental regulation.

(5) ncreasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

(b) Policy

It is the policy of the United States –

(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and

(5) 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(a) and (b). In recognition of those stated findings and policies, subsection (c) of the CDA provides that "[n]o provider ... of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). This is the immunity provision relied upon by Defendants. In addition to granting immunity to interactive service providers for content created by third parties, Congress also expressly preempted all state laws that are inconsistent with this immunity. 47 U.S.C. § 230(e)(3) ("No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.").

C. FOSTA Exception to Immunity

In 2018, Congress enacted the Fight Online Sex Trafficking Act ("FOSTA") and removed sex trafficking from CDA immunity. FOSTA provides that "[n]othing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit ... any claim in a civil action under section 1595 of Title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title." 47 U.S.C. § 230(e)(5)(A). This is the provision relied upon by Plaintiff.

D. Sex Trafficking Claims Under 18 U.S.C. §§ 1591, 1595

FOSTA permits claims for civil damages to be made against interactive computer service providers under § 1595, if "the conduct underlying the claim constitutes a violation of section 1591." Section 1595 is the Civil Remedy provision of the Trafficking Victims Protection Act and provides as follows:

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

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