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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.

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)). 

In recent years, there have been a number of suits filed in federal courts seeking to hold social media platforms responsible for providing material support to terrorists by allowing members of such groups to use social media accounts and failing to effectively block their content and terminate such accounts. As we’ve previously written about, such suits have generally not been successful at either the district court or circuit court level and have been dismissed on the merits or on the basis of immunity under Section 230 of the Communications Decency Act (CDA).

This past month, in a lengthy, important 2-1 decision, the Second Circuit affirmed dismissal of federal Anti-Terrorism Act (ATA) claims against Facebook on CDA grounds for allegedly providing “material support” to Hamas. The court also declined to exercise supplemental jurisdiction over plaintiff’s foreign law claims. (Force v. Facebook, Inc., No. 18-397 (2d Cir. July 31, 2019)).  Despite the plaintiffs’ creative pleadings that sought to portray Facebook’s processing of third-party content as beyond the scope of CDA immunity, the court found that claims related to supplying a communication forum and failing to completely block or eliminate hateful terrorist content necessarily treated Facebook as the publisher of such content and were therefore barred under the CDA. 

In the past few months, there have been a number of notable decisions affirming broad immunity under the Communications Decency Act (CDA), 47 U.S.C. §230(c), for online providers that host third party content. The beat goes on, as in late May, a Utah district court ruled that the Tor Browser, which allows for anonymous communications and transactions on the internet, was protected by CDA Section 230 for a website’s sale of illegal substances to a minor on the dark web via the Tor Browser.

More recently, the D.C. Circuit affirmed the dismissal of claims brought by multiple locksmith companies (the “plaintiffs”) against the operators of the major search engines (the “defendants” or “providers”) 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. (Marshall’s Locksmith Service v. Google LLC, No. 18-7018 (D.C. Cir. June 7, 2019)). According to the plaintiffs, by burying legitimate locksmiths listings (with actual, local physical locations) beneath so-called “scam” listings from locksmith call centers that act as lead generators for subcontractors, who may or may not be fully trained, plaintiffs’ legitimate businesses suffered market harm and were forced to pay for additional advertising. (Beyond this case, the issue of false local business listings appearing in Google Maps remains an ongoing concern, according to a report from the Wall Street Journal yesterday).