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California enacts law holding social media companies liable for allowing child sex trafficking

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Gov. Gavin Newsom has signed a bill into law that could hold social media companies like Facebook, TikTok and Instagram liable for facilitating child sex trafficking, his office announced.

Assembly Bill 1394, which was authored by state Assemblymember Buffy Wicks, D-Oakland, and will go into effect Jan. 1, 2025, requires a court to award statutory damages between $1 million and $4 million for each act of commercial sexual exploitation that social media platforms "knowingly facilitated, aided or abetted."

The legislation makes California the first state in the nation to enact a law that takes a two-pronged approach. First, it permits survivors of child sex trafficking and abuse to sue platforms for knowingly contributing to child sex trafficking. Secondly, it requires platforms to establish a process by which survivors of child sex abuse can demand that the platforms remove videos and images of their abuse.

Companies have 36 hours to take down material once it is reported to them, said Natalia Garcia, a spokesperson for Common Sense Media, a nonprofit organization that reviews and rates children's media that co-sponsored the bill.

"But the total damages are in the hands of the judge in the end," she said.

The law includes a safe harbor for media platforms that demonstrate they are actively fighting abuse. If they conduct biannual audits to detect potentially harmful algorithms and then make necessary fixes, they can avoid lawsuits.

In addition to Common Sense Media, the bill's sponsors include the Children's Advocacy Institute at the University of San Diego School of Law, and the American Association of University Women.

"Everybody who cares about elevating the needs of sexually abused children above Big Tech profits should thank Governor Newsom and Assemblymember Wicks for their leadership," said Ed Howard, senior counsel for the Children's Advocacy Institute. In a statement, the institute said the bill was opposed by TechNet, NetChoice and other companies.

In a Sept. 20 letter asking the governor to veto the bill, NetChoice said, "The State does not have a free pass to regulate merely because it wants to combat some evil."

Previous attempts by the state to hold media companies accountable for harmful content have been opposed successfully by internet platforms using Section 230 of the federal Communications Decency Act of 1996, which says that online internet platforms are immune from liability for content generated by users. The difference between this law and others is the difference between immunity and liability.

Texas attorney Annie McAdams, who is representing close to 100 victims in child sex trafficking cases, said the new California law takes federal law a step further and if the companies do not do anything about it, there is a consequence. The immunity protections of Section 230 allowed the tech companies to dismiss cases before they were heard.

"This law supports what we've been trying to tell the courts for the past five years," McAdams said. "We know very clearly that these tech companies and social media companies absolutely know what's going on and are absolutely facilitating sexual exploitation while knowingly benefiting."

If the law was currently in effect, McAdams said she could use it immediately in one case, Jane Doe (K.B.) vs. Facebook. In that case, Facebook's Instagram algorithms connected the plaintiff with a male sex trafficker, who allegedly used the platform to groom her and to be advertised for sale. The girl was allegedly repeatedly sold for sex through Instagram and was assaulted by numerous men in Houston. The case is currently pending on a motion by the company to dismiss.

"For over 20 years, victims and survivors were never given their day in court," said McAdams. "Tech companies could just knock them out. This is an important statute because it's going to allow these victims and survivors to show what they know about what these tech companies are doing. And it's important the law comes from California, because that's their home turf. The legislature is sending a message to their own businesses."  

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