Attorney Who Sued Grindr Responds Extremely Poorly To The Supreme Court's Rejection Of Her Section 230 Lawsuit

from the upside-is-no-one-will-be-suing-Twitter-over-this-attorney's-veiled-threat dept

The Herrick v. Grindr case [um] ground to a halt on October 7th, as the Supreme Court refused to grant cert. The lawsuit -- and its attempt to undermine Section 230 immunity -- is dead, relegated to the pile of also-rans which have attempted to get a US court to rewrite this very important section of the Communications Decency Act.

Not that there was anything decent in the events leading up to the lawsuit. Matthew Herrick's ex-boyfriend used Herrick's information to create a fake Grindr profile and sent more than 1,200 men to Herrick's home and workplace over the next several months. Herrick sued Grindr, alleging that the company failed to prevent his ex from abusing the service to harass him.

The case was tossed on appeal, with the Second Circuit Court finding in favor of Grindr and its invocation of its Section 230 immunity. The party at fault here was Herrick's ex-boyfriend, but it was Grindr Herrick chose to take to court. The case was not argued well. The allegations contained suppositions that were pretty much impossible to reconcile, as Cathy Gellis pointed out in her post on the lawsuit. Herrick tried to dodge Section 230 immunity by claiming Grindr either handed out his geolocation info or some sort of bug left it exposed. This was the basis for his negligence claims. But none of that makes sense.

For it to be true Grindr would need to not only still be tracking him (even as an ex-user) but then, for some unknown reason, somehow unite the location data of the actual Herrick person with the fake Herrick profile. Herrick tried to argue that the first part was likely, citing for instance Google's location services continuing to track users after they'd thought it had stopped. But even if it were true that Grindr had continued to track him, it would be really random to associate that data with any other account he didn't control. From Grindr's point of view, his real account and the fake account would look like two completely separate users. Sure, Grindr could have a bug that mis-associated location data, but there's no reason for it to pick these two completely different accounts to merge the data from. It would be just as arbitrary as if it mixed up his data with any other Grindr account.

The most likely reason strange men kept showing up at Herrick's home and place of business was because his ex-boyfriend knew these locations and could send that info to Grindr users. That meant a third party was supplying the information that resulted in Herrick's harassment, not Grindr itself.

The denial of Supreme Court cert was tweeted by Section 230 legal scholar/law prof Eric Goldman. As readers of Techdirt are aware, there's seldom a Section 230 case Goldman (or his co-bloggers) don't cover, even if only briefly. Goldman's tweet of the Supreme Court denial was nothing but the reporting of the facts with the tiniest bit of commentary. Here's what Goldman said (links removed for clarity):

It's not the least bit surprising, but today SCOTUS denied cert in Herrick v Grindr, a significant #Sec230 defense-favorable ruling.

Here's how Herrick's lawyer responded to Goldman's innocuous tweet:

If you can't read/see it, the tweet reads:

Sure would be a shame if somebody misused a dating app to send men to this guy's home as happened 1200+ times to our client, Matthew.

Here's Scott Greenfield's take on this bizarre and inappropriate response by Herrick's attorney:

Goldberg’s reaction to Goldman’s twit appears to be a call to make him suffer the same harm that her client suffered, to implore some unduly passionate nutjob to e-personate Goldman so that he should become the target that Herrick was at the hands of his ex-boyfriend. As sick and twisted as Herrick’s ex might have been, this effort to target Goldman for attack, for harm, was even worse.

Eric Goldman’s attention to this case was as a lawyer, a law professor. While Herrick surely suffered terrible harm, it was at the hands of his ex-boyfriend. Goldberg, a lawyer, would be playing the ex-boyfriend to Goldman, the academic, not because he did anything to her or her client, but because his view of the law differed from hers.

Now, it could be Carrie Goldberg meant to do nothing more than point out Goldman's belief that platforms should not be held responsible for speech such as hers. If so, the point was made in the worst possible way. I doubt Goldberg wants Goldman to be harassed by strangers simply for disagreeing with her legal arguments, but a straight reading of her tweet doesn't really lend itself to charitable interpretations.

Also, it's odd for a self-proclaimed "victim rights'" attorney who goes around constantly insisting that her entire focus in life is protecting those who have been harmed... to then directly and explicitly wish harm on someone who merely commented (accurately) on a lawsuit. It becomes difficult to take her position seriously when she suggests the same sort of tactics she claims to fight against.

But this is the unfortunate side effect of arguments against Section 230 immunity. It's become increasingly popular to blame the immunity for the deeds and words of third-party users. This, of course, makes no sense. But the alternative is to recognize users are responsible for their own conduct and content and that unfortunate truth simply won't suffice when there's lawsuits to be filed, grandstands to be stood upon, and error-laden op-eds to be composed for the New York Times.

Greenfield points out the ridiculousness of this newly-popular Section 230 hatred, which has somehow managed to draw in acolytes from all political persuasions. (We'll try to forgive Greenfield's use of "safe harbor" [like the DMCA] rather than "immunity" [which is what it actually is].)

[F]or some of those on the Herrick’s side of the fence, there is no concern for Section 230 safe harbor, which is seen as nothing more than a protection that allows websites and apps to avoid the responsibility they would impose to protect their victims from harm. This is a view gathering support from both the right and left, both of which abhor the idea that they can’t dictate the content of the web to suit their demands and desires.

Ironically, they may share a hatred of this safe harbor, but their notions of who would be protected if it were gone are opposite. Neither seems to have the self-awareness to grasp this distinction, and both believe that they will own the future such that their vision of authoritarian control will prevail.

Lots of people want Section 230 immunity weakened or destroyed. Everyone who does thinks the internet will be better without it. But if it's gone, the services and platforms Section 230 opponents seem to believe will become better will actually become more restrictive or cease to exist. And crude reactions like Goldberg's are exactly the sort of thing that will disappear fastest if platforms can be sued for things their users have said.

Filed Under: carrie goldberg, eric goldman, matthew herrick, section 230, supreme court
Companies: grindr

Section 230 Holds On As Grindr Gets To Use It As A Defense

from the finally-some-good-news-for-Section-230 dept

It's not really possible to predict the outcome of a court case. No matter how convinced you are that things look to be heading one way, there are still a zillion ways things can turn out otherwise.

That said, however, I'm glad to discover that my cautious optimism about the Herrick v. Grindr case was not misplaced. This was a case where a terrible ex-boyfriend set up a phony Grindr profile for Herrick, which led to him being harassed by would-be suitors thinking it was genuine. It was an awful situation and no one can fault Herrick for wanting to hold someone responsible. The problem was, if he were to succeed in holding the dating app liable, it would represent a serious weakening of Section 230's platform protection, which, as we've discussed many times, would lead to the reduction of online services and censorship.

Grindr has now prevailed, however, and, perhaps more importantly, so has Section 230 as a defense in the Second Circuit (albeit in a non-precedential decision).

Herrick’s products liability claims and claims for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress are barred by CDA § 230, and dismissal on that ground was appropriate because “the statute’s barrier to suit is evident from the face of the complaint.” [p. 7]

To some extent, the decision was fairly easy for the court to reach: first, Herrick had at various points acknowledged that Grindr was as an interactive computer service ("ICS"), and the Court of Appeals for the Second Circuit was not inclined to overturn the district court's finding that Grindr so qualified.

Indeed, the Amended Complaint expressly states that Grindr is an ICS, and Herrick conceded as much at a TRO hearing in the district court. Accordingly, we see no error in the district court’s conclusion that Grindr is an ICS. [p. 4]

The court also seemed to have little trouble recognizing that the objectionable behavior that was the subject of the complaint was based on information provided by a third party.

Herrick’s products liability claims arise from the impersonating content that Herrick’s ex‐boyfriend incorporated into profiles he created and direct messages with other users. Although Herrick argues that his claims “do[] not arise from any form of speech,” Appellant’s Br. at 33, his ex‐boyfriend’s online speech is precisely the basis of his claims that Grindr is defective and dangerous. Those claims are based on information provided by another information content provider and therefore satisfy the second element of § 230 immunity. [p. 5]

Perhaps more importantly for future cases, the court extended this reasoning to the Herrick's claims relating to the app's geo-location feature.

The claims for negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress relate, in part, to the app’s geolocation function. These claims are likewise based on information provided by another information content provider. Herrick contends Grindr created its own content by way of the app’s “automated geolocation of users,” but that argument is undermined by his admission that the geolocation function is “based on real‐time streaming of [a user’s] mobile phone’s longitude and latitude.” Appellant’s Br. at 32. It is uncontested that Herrick was no longer a user of the app at the time the harassment began; accordingly, any location information was necessarily provided by Herrick’s ex‐boyfriend. [p. 5]

Finally, the court also recognized that the Herrick's claims involved treating Grindr as the publisher or speaker of the offensive content, when in fact it had originated with a third party (in this case the terrible ex-boyfriend).

Herrick’s failure to warn claim is inextricably linked to Grindr’s alleged failure to edit, monitor, or remove the offensive content provided by his ex‐boyfriend; accordingly, it is barred by § 230. … To the extent that the claims for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress are premised on Grindr’s allegedly inadequate response to Herrick’s complaints, they are barred because they seek to hold Grindr liable for its exercise of a publisher’s traditional editorial functions. To the extent that they are premised on Grindr’s matching and geolocation features, they are likewise barred, because under § 230 an ICS “will not be held responsible unless it assisted in the development of what made the content unlawful” and cannot be held liable for providing “neutral assistance” in the form of tools and functionality available equally to bad actors and the app’s intended users. [p. 6-7]

All in all, despite all the press coverage convinced that the terrible facts made the case seem like it would be a close call, the result was instead a pretty straightforward application of Section 230 as a defense working the way it was intended.

Filed Under: 2nd circuit, blame, cda 230, herrick, intermediary liability, section 230
Companies: grindr

Herrick V. Grindr – The Section 230 Case That's Not What You've Heard

from the pleading-matters dept

On the surface Herrick v. Grindr seems the same sort of case as Daniel v. Armslist (which we wrote about last week): it's a case at an appeals court that addresses the applicability of Section 230, meaning there is a reasonable possibility of it having long-lingering effect on platforms once it gets decided. It's also a case full of ugly facts with a sympathetic plaintiff, and, at least nominally, involves the same sort of claim against a platform – in Armslist the claim was for "negligent design," whereas here the claim is for "defective design." In both cases the general theory is that because people were able to use the platform to do bad things, the platforms themselves should be legally liable for the resulting harm.

Of course, if this theory were correct, what platform could exist? People use Internet platforms in bad ways all the time, and they were doing so back in the days of CompuServe and Prodigy. It is recognition of this tendency that caused Congress to pass Section 230 in the first place, because if platforms needed to answer for the terrible things their users used them for, then they could never afford to remain available for all the good things people used them for too. Congress felt it was too high a cost to lose the beneficial potential of the Internet because of the possibility of bad actors, and so Section 230 was drafted to make sure that we wouldn't have to. Bad actors could still be pursued for their bad acts, but not the platforms that they had exploited to commit them.

In this case the bad act in question was the creation and management of a false Grindr profile for Herrick by an ex-boyfriend bitter about their breakup. It led to countless strangers, often with aggressive expectations for sex, showing up at Herrick's home and work. There is no question that the ex-boyfriend's behavior was terrible, frightening, inexcusable, and, if not already illegal under New York law, deserving to be. But only to the extent that such a law would punish just the culprit (in this case the ex-boyfriend who created the fake profile).

The main problem with this case is that Herrick is seeking to have New York law extend to also punish the platform, which had not created the problematic content. But the plain language of Section 230 – both in its immunity provision along with its pre-emption provision – prevents platforms from being held liable for content created by others. Herrick argues that Grindr should be held liable anyway "because it knowingly facilitated criminal and tortious conduct." But that's not the standard. The standard is whether the platform created the wrongful content, or, at minimum, in the wake of Roommates, had a hand in imbuing it with its wrongful quality. But here there is no evidence to suggest that Grindr had anything to do with the creation of the fake profile. It was the awful ex-boyfriend who was doing all the malfeasant content supplying.

But here's where the two cases part company, and where the Grindr one gets especially messy. The good news for Section 230 is that this messiness may make it easy for the Second Circuit to resolve in favor of Grindr and leave Section 230 unscathed. The bad news is that if the Second Circuit decides the other way, it will be very messy indeed.

One of the core questions in most lawsuits involving Section 230 is whether the platform itself is an interactive computer service provider, and thus protected by Section 230 for lawsuits seeking to hold them liable for content created by others, or whether it is instead a non-immune "information content provider." Part of the problem with this case is that when Herrick filed the lawsuit originally, the pleading acknowledged that it was an interactive computer service provider. Later when he was fighting the motion to dismiss he changed its mind, but that's a problem. You don't usually get to change your mind about these critical elements of your complaint without repleading it. (Which is one of the reasons Herrick is appealing; the dismissal was "with prejudice," meaning it wouldn't easily be able to re-plead at this point, and Herrick wants another chance to amend his complaint.)

But that's only one of the pleading problems. A plaintiff also has to put forth a plausible theory of liability at the outset, in large part so that the defendant can be on notice of what it is being accused of to defend itself. It's not unusual for theories of liability to evolve as litigation proceeds, but if the theory changes too much too late in the process it raises significant due process problems for the defendant. Which seems to be happening here. The story Herrick told the Second Circuit about why it thought Grindr should be liable for the harm Herrick suffered differed in significant ways from the story it had told at the outset, or to the trial court. This change is one reason why the case is particularly messy, and may be messier still if the Second Circuit allows it to continue anyway.

At issue is what Herrick told the Second Circuit about his harassment. According to him now, strange men were showing up in his life not just constantly but everywhere he went. Yet according to the record at the trial court, they only showed up in two places: his home and his work. Which is not to say, of course, that it's ok for him to have these people harass him at either place (or any place). The issue is that this "everywhere" v. "only in two places" distinction significantly affects his theory of the case and therefore the merits of his appeal.

Because the argument he pressed at oral argument was that it was Grindr's geolocation service that removed the case from Section 230's purview. According to him there must be some bug in Grindr that allows these strange men to know where he is and seek him out, and so, he thinks, Grindr should be liable for not fixing this defect.

However there are a number of problems with this theory. First, it is highly implausible. For it to be true Grindr would need to not only still be tracking him (even as an ex-user) but then, for some unknown reason, somehow unite the location data of the actual Herrick person with the fake Herrick profile. Herrick tried to argue that the first part was likely, citing for instance Google's location services continuing to track users after they'd thought it had stopped. But even if it were true that Grindr had continued to track him, it would be really random to associate that data with any other account he didn't control. From Grindr's point of view, his real account and the fake account would look like two completely separate users. Sure, Grindr could have a bug that mis-associated location data, but there's no reason for it to pick these two completely different accounts to merge the data from. It would be just as arbitrary as if it mixed up his data with any other Grindr account.

Furthermore, there is zero evidence to suggest that the fake account used the geolocation data of anyone at all, other than perhaps the ex-boyfriend, who was operating the account. There certainly is no evidence to suggest that it was somehow using Herrick's actual data, and that's why the factual distinction about where he was harassed matters. If it truly was everywhere then he might have a point about the app having a vulnerability, and if so then perhaps his defective design claim might start to be colorable. But the only information he's alleged is that he was harassed in those two places, home and work, and no one needed to use any geolocation data to find him at either of these places. The ex-boyfriend knew of these places and could easily send would-be suitors to them directly via private messages. In other words, the reason they turned up at either of these places was because of content supplied by a third party (the ex-boyfriend). This fact puts the case clearly in Section 230-land and makes the case one where someone is trying to hold a platform liable for harm caused by how another communicated through their system.

Finally, an additional problem with this theory is that even if it were correct, and even if there were some evidence that the geolocation was allowing strangers to harass him everywhere, it needed to have come up before the appeal. The purpose of the appeal is to to review whether the first court made a mistake. Belatedly supplying more information for the benefit of the appeals court will not help it decide whether the first court made a mistake because that court could only have done the best it could with the information available to it. It isn't a mistake not to have had the benefit of more, and to add more at this late date would be incredibly unfair to the defendant. As it was, by pressing this new "he was tracked everywhere" theory at oral argument it left Grindr's counsel in the unenviable and risky position of having to field extremely hypothetical questions from the judges about their client's potential liability based on facts nowhere in the underlying record. It was uncomfortable to listen to the judges push Grindr's lawyers on the question of whether some hypothetical software bug that they had never contemplated, and likely doesn't exist, might undermine their Section 230 protection. To their credit they fielded the hypo on the fly pretty well by reminding the judges that Section 230 covers how platforms are used by other people, regardless of whether they are used appropriately or exploitatively. But given the way this case was pleaded from the outset, this hypo should never have come up, especially not at this late juncture.

So one of the overarching concerns about this case is that because this theory did not coalesce until it had reached the appeals court, it left the central legal questions it raised under-litigated, thus inviting poor results if the Second Circuit now gives them any credence. But that's not the only concern. It may still be an ominous harbinger, for even if Herrick loses the appeal, it may not be the last time we see this "software vulnerability makes you lose Section 230 protection" theory put forth. It foreshadows how we may see future privacy litigation wrapped-up as defective design cases, and, worse, it may encourage plaintiffs seeking to do an end-run around Section 230 to try to package their claims up as privacy cases.

Also, what Herrick asked for in his appeal was a remand back to the trial court to explore all these under-developed evidentiary issues. Was there a software bug? Was Grindr continuing to track former subscribers in a way they didn't know about? Was there a privacy leak, where the fake profile was somehow united with the geolocation of a real person? Herrick believes the case shouldn't have been dismissed without discovery on these issues, but early dismissal is a big reason why Section 230 provides valuable protection to a platform. It is extremely expensive to go through the discovery stage – in fact, it's often the most expensive stage – and if platforms had to endure it just so plaintiffs could explore paranoid fantasies with no evidence to give them even a veneer of plausibility, it will be extremely destructive to the online ecosystem.

On the upside, however, unlike the Wisconsin Court of Appeals in the Armslist case, after listening to the oral argument I'm relatively confident that the judges will be able to respect prior precedent upholding Section 230, even in these awful cases, and resist reaching an emotional conclusion that strays from it. Also, given the issues with the pleading and such – which at oral argument the judges flagged – there may be enough procedural problems with Herrick's case to make it easy for the court to dispense with it without causing damage to Section 230 jurisprudence in the Second Circuit in the process. But if these predictions turn out to be wrong, and if it turns out that these procedural issues pose no obstacle to the court issuing the remand Herrick seeks, then we might have to contend with something really ugly on the books at a federal appellate circuit level.

Filed Under: cda 230, intermediary liability, section 230
Companies: grindr

It's Grindr's Turn In The Barrel As America Finally Decides To Care About Consumer Privacy

from the standard-operating-procedure dept

Whatever you think about the Facebook Cambridge Analytica kerfuffle, it's pretty obvious that the scandal is causing a long overdue reassessment of our traditionally lax national privacy standards. While most companies talk a good game about their breathless dedication to consumer privacy, that rhetoric is usually pretty hollow and oversight borders on nonexistent. The broadband industry is a giant poster child for that apathy, as is the internet of very broken things sector. For a very long time we've made it abundantly clear that making money was more important than protecting user data, and the check is finally coming due.

While it may only be a temporary phenomenon, the Cambridge Analytica scandal is finally causing some much-needed soul searching on this front. And given how deep our collective privacy apathy rabbit hole goes, being sloppy with consumer data may actually bear witness to something vaguely resembling accountability for a little while. Case in point is gay dating site Grindr, which this week was hammered in the media after it was revealed that the company was sharing an ocean of data with app optimization partner companies, including location data and even HIV status.

Norwegian nonprofit SINTEF was commissioned to dig into the problem on behalf of Swedish public broadcaster SVT, which first broke the story. According to SINTEF, Grindr was also sharing its users’ precise GPS position, "tribe" (their preferred gay subculture), sexuality, relationship status, ethnicity, and phone ID with third-party advertising companies. And, because even "anonymized" data can never be truly considered anonymous, they concluded it isn't hard to identify these users based on this data.

Many were surprised that such a popular company would have such a casual disregard for its consumer privacy:

"Grindr is a relatively unique place for openness about HIV status,” James Krellenstein, a member of AIDS advocacy group ACT UP New York, told BuzzFeed News.

“To then have that data shared with third parties that you weren’t explicitly notified about, and having that possibly threaten your health or safety — that is an extremely, extremely egregious breach of basic standards that we wouldn’t expect from a company that likes to brand itself as a supporter of the queer community."

But again, this casual treatment of data isn't errant behavior on Grindr's part -- it's the norm. And in this case, many are correct to point out that in addition to it being problematic that users didn't know this data was being shared outside of the Grindr community, the exposure of the HIV data (which again was only with two app optimization companies) could potentially have placed people living in homophobic areas at risk of violence:

To its credit, Grindr wound up announcing that it would stop sharing HIV data with third parties, but not before the company issued a statement tinged with the usual lamentations about "misinformation." Several statements were made of the "everybody does it," flavor which didn't help the company's case. Grindr security chief Bryce Case also got defensive in comments to Axios about how the company was being "unfairly" singled out due to the Cambridge Analytica scandal:

"I understand the news cycle right now is very focused on these issues," Case said, but added, "I think what’s happened to Grindr is, unfairly, we’ve been singled out..."It’s conflating an issue and trying to put us in the same camp where we really don’t belong."

But nobody accused Grindr of doing what Cambridge Analytica did. They did however accuse the company of what's now fairly standard privacy apathy across countless industries, including overlong terms of service that don't make it clearer what data is being shared with whom, the sharing of some of private consumer data in unencrypted plain text (you know, like your television probably does), and sharing extremely-sensitive HIV status data that pretty clearly wasn't necessary for "app optimization":

"But some security experts say that this argument about whether the data was being sold to a third party for nefarious purposes or not misses the point: that HIV data is highly sensitive, and that sharing it with any outside companies is a move away from the security of its users.

"There was no reason for them to be storing that data with these analytics companies in the first place," Cooper Quintin, senior staff technologist and security researcher at the Electronic Frontier Foundation, told BuzzFeed News. "Grindr should be taking extra steps to secure this sort of very personal data."

It's understandable that Grindr doesn't want to be lumped in with Cambridge Analytica, and it's obvious that there's a vast chasm between sharing some data with ad optimization partners and using unauthorized data to disrupt elections. Still, companies like Grindr are lucky that this come to Jesus moment in consumer privacy didn't arrive years ago.

Assuming this concern for privacy isn't just a temporary fashion trend, Grindr's certainly not going to be the last company caught in the crossfire of what should be seen as a cultural learning process. And hopefully, some of the truly terrible players on this front (like the telecom sector) will ultimately witness their time in the barrel as well. Especially since what many wireless carriers have routinely been up to makes Grindr's privacy missteps look like child's play, and the government's response so far has been to make it easier than ever to violate consumer privacy.

Filed Under: data sharing, hiv status, location data, privacy
Companies: grindr

No, You Can't Sue Grindr Because It Hooked You Up With A 13-Year-Old For Sex

from the take-responsibility-for-your-own-actions dept

We've discussed the importance of Section 230 of the CDA many times here on Techdirt, and once again it's being used to stop someone from trying to blame an internet service for someone's own actions. In this case, the app Grindr. Through a somewhat complicated set of details, a threesome was organized via Grindr's GrindrX service, with one of the participants being a 13-year-old boy. One of the two adult men who took part in the threesome, William Sapanaro Jr., was arrested and "charged with sexual assault and endangering the welfare of a child in connection with the aforementioned sexual encounter." He's still facing a long prison sentence. In response, Sapanaro then sought to sue Grindr for facilitating the hookup, pointing out that the service had terms of service that required participants to be of age.

Thankfully, the court quickly got this right, tossing out the lawsuit and noting that Grindr is protected by Section 230 of the CDA, and cannot be held liable for the actions of its users.

For the reasons set forth below, the Court holds that Plaintiff’s claim is barred by the Communications Decency Act. Furthermore, the Court finds that Plaintiff’s claims of negligence and negligent infliction of emotional distress fail as a matter of law. Plaintiff’s complaint will be dismissed with prejudice.

The court cites multiple CDA 230 decisions that highlight how the immunity from liability clearly applies here. Also, it rejects Sapanaro's attempt to point to the famous "roommates.com" ruling. That was one of the very rare cases where a court rejected a CDA 230 defense, arguing that because Roommates.com actively asked people for preferences related to race, it violated fair housing laws. We were worried about that chipping away of Section 230 at the time. Indeed, since then, almost everyone looking to ignore Section 230 points to the Roommates case in their lawsuits. But, thankfully, almost every court ruling that discusses Roommates.com points out why it doesn't apply -- and this is yet another case where that's true (the court refers to that case as "Fair Housing" after the plaintiff, rather than the defendant Roommates.com):

The Court does not find the comparison to Fair Housing persuasive. Even assuming Plaintiff’s factual assertions to be true, as the Court must, the questions that Defendant poses to its subscribers when creating a profile substantively differ from those posed by the defendant in Fair Housing in one significant respect: they do not develop content that facially violates a state or federal statute. Defendant’s online questionnaire asks users to enter information about themselves, but these questions are facially benign. Plaintiff does not allege – nor does the Court find – that Defendants’ questionnaire solicits from users information that is illegal.

This distinction is readily apparent in Fair Housing. There, the Court specifically noted that “[a] dating website that requires users to enter their sex, race, religion and marital status through drop-down menus . . . does not contribute to any alleged illegality,” since “[i]t is perfectly legal to discriminate along those lines in dating, and thus there can be no claim based solely on the content of these questions.” ... Similarly, in this case, Defendant merely “provid[ed] neutral tools to carry out what may be unlawful or illicit [conduct]”; under Fair Housing, such conduct does not amount to “development” under section 230 of the CDA.

The court also laughs off the argument that CDA 230 was designed to be narrowly interpreted. We now have many, many years of rulings that say otherwise, so that was clearly a non-starter. Finally, the court rightly notes that holding sites liable for what users say or do would clearly chill free speech:

Courts have promulgated Congress’s intent by applying CDA immunity according to its own clear terms.... This Court must do the same, and it is not this Court’s function or role to substitute its judgment for the policy choices made by Congress in promoting communications on the internet. Holding interactive service providers liable for third-party communications would have chilling implications for free speech on the internet. Specifically, if social network hosts are faced with liability every time third-party communications on their networks result in harm, they are left with two extreme courses of action if they wish to ensure insulation from liability: either over-police their networks, taking down communications that might ultimately be harmless; or, strip users of the ability to post communications altogether.

It's good to see yet another clean Section 230 win -- and it's kind of crazy that these kinds of cases are still being brought.

Filed Under: cda, intermediary liability, section 230, william sapanaro
Companies: grindr