II. Recent Jurisprudence
A. Negligent Design
The makers of Snapchat have litigated two cases, Maynard v. Snapchat, Inc. and Lemmon v. Snap, Inc., for several years. Both cases resulted from young users attempting to drive at breakneck speeds while using Snapchat’s “speed filter,” a feature that used the phone’s GPS data to overlay the current speed of the person taking the photo. From the time it was introduced in 2013 until Snap, Inc. removed it from the app in June 2021, the filter was cited as the cause of many terrible accidents resulting in death and permanent disability.
In Maynard, a Georgia appellate court ruled that Section 230 does not apply because the claim was based on negligent design of Snap’s software and not on any third-party speech. However, on remand after eliminating Section 230 as a defense, the courts found that, under a standard breach-of-duty analysis, Snap had no duty to prevent the injury.
In Lemmon, a very similar case in which a young man logged an entry in Snapchat traveling at 123 miles per hour before crashing his truck and killing three people, the Ninth Circuit likewise dismissed the Section 230 defense because the negligent-design claim was not based on any third-party speech. On remand, Snap moved to dismiss the case on the ground that plaintiffs had failed to sufficiently plead a claim for negligence. The court adhered to its prior ruling that plaintiffs had sufficiently pled that Snap had a duty of care, and it addressed Snap’s argument that plaintiffs had failed to allege that Snap’s conduct was the proximate cause of plaintiff ’s injury. The court rebuffed the argument, finding that the complaint alleges “that the Speed Filter's design encouraged Plaintiffs to drive at dangerous speeds.” It explained:
There is realistically no purpose for the Speed Filter other than to encourage users to travel at high speeds and record themselves doing so. Defendant’s argument that users will use the Speed Filter “safely while walking, jogging, or riding a train, boat, or Ferris Wheel” is highly implausible…. It is common sense that adding a speed-sharing feature to a social media application used predominantly by minors and young adults would encourage such users to record themselves while driving at high speeds.
This represents a significant ruling for all app makers as it is the first time that a plaintiff ’s negligent design claim has survived a motion to dismiss.
B. Retweeting
Several recent cases have addressed the issue of whether retweeting information shared by another through an ICS is an act protected by Section 230. In Banaian v. Bascom, a student hacked into a high school’s website and modified a teacher’s page in a way that “suggest[ed] that [the plaintiff] was sexually pe[r]verted and desirous of seeking sexual liaisons with Merrimack Valley students and their parents.” After a picture of the site was tweeted, the plaintiff teacher sued those who retweeted it. The New Hampshire Supreme Court found that Section 230 protected the retweeters as users of an ICS.
However, not all retweets are immunized. Retweets that include no additional writing, such as those in Banaian, are differentiated from retweets where the user adds authored material. An exemplary case was decided in the U.S. District Court for the District of Columbia, which held that text that an ICS user adds on to the retweeted material does not qualify for protection under Section 230. In this case, the former CEO of Overstock.com retweeted a story about Chinese interference with Dominion voting machines and stated that he had seen proof of the story’s veracity. The court denied the defendant’s Section 230 defense.
C. Vending of Public Databases
A flurry of cases have been decided in the last year concerning the business of accumulating, packaging, and commercializing personal information from sources such as school yearbooks. Each defendant offers paid access to databases containing detailed information on many aspects of someone’s life that, although not necessarily private, has never before been accessible by the worldwide general public (e.g., kindergarten yearbook photos, place and dates of birth, vehicle registration data).
For example, in Sessa v. Ancestry.com Operations Inc., the court explored how Ancestry “extracted personal information from school yearbooks, then aggregated the extracted information into digital records that correspond to and identify specific individuals” and then sold “the names, photographs, cities of residence, schools attended, estimated ages, likenesses, and identities Ancestry has amassed in its Ancestry Yearbook Database.” Plaintiffs argued that the use of this information as both a product and a means of advertisement violated multiple state laws governing privacy rights and deceptive trade practices. The court found that Ancestry is not protected by Section 230 because “Ancestry alone is responsible for posting the material on its website after it receives the records from others.”
PeopleConnect (the company behind Classmates.com) and Spokeo each offer similar products, were sued for similar reasons, attempted similar defenses, and each was unsuccessful. This spate of consistent rulings affect the core business operations of these companies and will present significant litigation cost moving forward.
D. Liability of Online Firearm Marketplaces
Armslist, an online marketplace for firearms and associated products, has become a focal point of that portion of the national gun rights debate pertaining to purchasing of weapons. In a previous survey I discussed a variety of Armslist cases where the company successfully used Section 230 to defeat claims from those harmed by weapons whose purchase was facilitated by the site. Even in cases where, for example, a weapon was illegally purchased by an ineligible buyer and used to shoot a policeman, Section 230 provided an impenetrable shield for the company. However, in two recent cases, judges have refused to extend Section 230 protections to Armslist.
Webber v. Armslist involved the murder of a woman by her estranged husband. The woman’s estate sued, claiming that the husband would not have been able to purchase the firearm but for the negligent manner in which purchases are regulated on Armslist. Just ten days later, a different judge in the same district adopted much of the same reasoning in Bauer v. Armslist, LLC, a case that involved the illegal sale of a firearm by an unlicensed dealer whose gun eventually ended up in the hands of a convicted felon who used it to murder a police officer.
The judges, each presiding in the U.S. District Court for the Eastern District of Wisconsin, made many of the same arguments, cited the same precedent, and reached the same conclusion. Both judges denied Section 230 immunity, conducted a standard negligence analysis, ruled in favor of Armslist, and posited that Wisconsin public policy prohibits the imposition of liability on Armslist for the victims’ deaths. In each case, the judges, in the district that handles much of the litigation involving Armslist, devoted a significant amount of their opinions to explaining the legal regime that will govern future cases against the company.
III. State-level Efforts to Regulate Social Media
On May 24, 2021, Florida Governor Ron DeSantis signed the Transparency in Technology Act into law. The measure prohibits social media platforms from deplatforming a candidate for office, with violators subject to a private right of action and fines of up to $250,000 per day. However, soon after the law came into effect, two trade associations representing social media platforms filed a legal challenge, and the U.S. District Court for the Northern District of Florida preliminarily enjoined enforcement of the law. On appeal, the Eleventh Circuit upheld the preliminary injunction, holding that the prohibitions against deplatforming candidates “are substantially likely to violate the First Amendment.”
Meanwhile, in Texas, a substantially similar, albeit more refined, law was preliminarily enjoined before it went into effect. The trial court held that plaintiffs were likely to succeed in establishing that the law “imposes content-based, viewpoint-based, and speaker-based restrictions” and therefore violates the First Amendment. The attorney general appealed, and the Fifth Circuit responded with a one-sentence order granting a stay of the district court’s injunction pending appeal. Upon an emergency application, the U.S. Supreme Court, without an opinion and over the dissents of four justices, reversed the Fifth Circuit’s order and reinstated the injunction.
IV. Conclusion and Looking Forward
The movement by states to regulate online speech is a predictable outgrowth of two factors: increased politicization of the Internet and inaction by Congress. Even before the political uproar that followed Twitter’s deplatforming of then-President Donald Trump, Congress held hearings that featured experts from industry, academia, and government. Several major stakeholders, such as Twitter and Google, have expressed openness during Congressional hearings to the idea of reforming or modernizing Section 230 and other laws that govern intermediary liability. In fact, some of the largest technology companies in the world, including Meta (parent company of Facebook and Instagram), have openly stated that they would welcome detailed guidance that is informed by the developments of the past quarter century of Internet and e-commerce growth. For these companies, compliance and litigation expenses are major cost centers and renewed clarity for intermediaries would likely result in significant cost savings.
Whatever solution results from the judicial and legislative processes, it is critical to get it right because, as the complexity of Internet commerce increases, the transactional distance from producer to consumer naturally increases as well. This increased transactional distance necessitates an increasing number of intermediaries, all of whom need a stable and predictable regulatory environment in order to grow and thrive in the modern economy. The realization of these efficiencies is, of course, dependent upon the implementation of a uniform federal solution instead of ad hoc, politicized regulation by the states.
