In the swirl of scrutiny surrounding the big Silicon Valley tech companies and with some in Congress declaiming that Section 230 of the Communications Decency Act (CDA) should be curtailed, 2019 has quietly been an important year for CDA jurisprudence with a number of opinions enunciating robust immunity under CDA Section 230. In particular, there has been a trio of noteworthy circuit court-level opinions rejecting plaintiffs’ attempt to make an “end run” around the CDA based on the assertion that online service providers lose immunity if they algorithmically recommend or recast content in another form to other users of the site.
- In Herrick, the Second Circuit found that the CDA barred claims that sought to ascribe liability to a mobile dating service for the design of its platform, finding it within the purview of protected “traditional editorial functions.”
- In Marshall’s Lockmsith, the D.C. Circuit affirmed dismissal of claims brought by multiple locksmith companies against the operators of the major search engines for allegedly publishing the content of fraudulent locksmiths’ websites and translating street-address and area-code information on those websites into map pinpoints that were displayed in response to user search requests.
- In the Force case, the Second Circuit found that claims related to supplying a communication forum and failing to completely block or eliminate hateful terrorist content necessarily treated the platform as the publisher of such content and were therefore barred under the CDA.
This week, in a case with an unsettling fact pattern, the Ninth Circuit made it a quartet – ruling that a now-shuttered social networking site was immune from liability under the CDA for connecting a user with a dealer who sold him narcotics that culminated in an overdose. The court found such immunity because the site’s functions, which included content recommendations and notifications to members of discussion groups, were “content-neutral tools” used to facilitate communications. (Dyroff v. The Ultimate Software Group, Inc., No. 18-15175 (9th Cir. Aug. 20, 2019)).