CCIA to 5th Circuit: Reverse Decision Denying Apple Section 230 Immunity

Congress enacted a “clear mandate” in Section 230 to protect digital services from being held liable as the publisher or speaker of third-party content,” said a Computer & Communications Industry Association 5th Circuit amicus brief Monday (docket 22-16914) in support of Apple’s appeal in the App Store Simulated Casino-Style Games Litigation. The 11 plaintiffs in the six related cases attempt to evade Section 230's protections “by claiming that the digital services’ provision of payment-processing systems transforms the allegedly illegal acts of third parties into the allegedly illegal acts of the digital services themselves,” said CCIA. “Not so,” it said. The plaintiffs allege certain apps available through the App Store enable unlawful gambling and that Apple should be held liable for that illegal activity. When Apple moved to dismiss the complaint on grounds it's immune from liability under Section 230, the district court agreed Section 230 barred Apple's liability for making apps available through the App Store. But the court also said Section 230 didn't bar liability under the plaintiffs' theory that Apple processed transactions for virtual currency used within the third-party apps. The payment-processing systems that app stores provide are merely tools for facilitating communication between third-party apps and their consumers, said CCIA. In providing these payment-processing systems, digital services don’t “endorse or otherwise adopt the content of third-party apps as their own,” it said. They instead “engage in the choosing, curation, and display of content that are the hallmarks” of interactive computer services that Section 230 protects, it said. The “hole” that the plaintiffs want to carve in Section 230 “would force digital services into an impossible choice between independently monitoring millions of digital apps,” or else “giving up on providing most internet content,” said CCIA. Even if it were possible for digital services to accurately and reliably monitor legal developments in every jurisdiction, “the sheer burden of doing so would make providing payment-processing systems impracticable,” it said. The loss of those systems’ availability “would be unduly disruptive to the aims of Section 230,” it said. The district court’s decision to deny Apple Section 230 immunity should be reversed, said CCIA.