Calif. Court's Snap Ruling Undermines Section 230, Says NetChoice

NetChoice wants the California Court of Appeal for the 2nd Appellate District to reverse a trial court’s opinion “that would undermine Section 230’s protections for free discourse online," said its amicus brief Wednesday (docket B335533) with the Chamber of Progress and Team Awareness Combating Overdose, a nonprofit fighting accidental drug overdoses among young adults.

The plaintiffs in the case are parents of Snapchat users who bought drugs from other users and suffered overdoses, said a Thursday NetChoice news release publicizing the brief. The parents sued Snap, arguing that the social media platform should be held liable for the overdoses for publishing user-generated content designed to “disappear” within 24 hours.

Snap moved to dismiss the claims under Section 230 of the Communications Decency Act, which bars claims against online platforms for user-generated content. The trial court denied Snap’s motion to dismiss, holding that the crux of the plaintiffs’ claims was about Snap’s product design vs. the user-generated drug content that led to the sale of the drugs. The opinion was “incorrect as a matter of policy and law, and it would effectively gut Section 230’s critical protections if left in effect,” said the brief.

By denying immunity for third-party content, the trial court’s decision renders Section 230 “nearly meaningless, creating confusion and inviting frivolous litigation” against internet services that Section 230 is meant to prevent, said the brief. Plaintiffs relying on the trial court’s decision could “sue services for alleged harms tied to third-party content merely by asserting that the service’s design facilitated the content,” it said.

The resulting wave of litigation, or the threat of it, “would pressure, if not practically force, services to remove legitimate content” and drop design features such as encryption, undermining the internet’s “vibrancy and threatening users’ privacy and safety,” the brief said. Congress enacted Section 230 “to prevent such mayhem,” it said.

Due to the potential for lawsuits, services may be pressured to prohibit any content that “could conceivably be tied to a real-world harm,” said the brief. “This would banish or severely curtail discussion of innumerable topics that even arguably present the slightest amount of controversy,” it said. That would “especially endanger discussions aimed at educating people about drug abuse harm reduction,” it said.

Section 230 “immunizes” certain internet services from claims involving harms tied to third-party content to promote their “continued development” and to “preserve the vibrant and competitive free market” for the services “unfettered by Federal or State regulation,” the brief said. Courts have affirmed that Section 230 gives service providers “broad immunity” from claims based on third-party content, it said.

In a case where a parent sued an internet service for allegedly connecting her son with a drug dealer -- Dyroff v. Ultimate Software Group -- the 9th U.S. Circuit Court of Appeals concluded that the plaintiff couldn’t “plead around Section 230 immunity,” said the brief. While the circumstances were “tragic,” the pleading failed because under Section 230, “what matters is whether the claims ‘inherently require[] the court to treat the defendant as the “publisher or speaker” of content provided by another,’” it said.

The plaintiffs’ theories that encryption is unsafe for services to offer because encrypted content is less likely to be inaccessible to parents or law enforcement is “profoundly concerning because encryption is essential for Internet privacy,” said the brief. Users rely on encryption to keep their digital conversations “confined to intended audiences,” it said. Without encryption, “private discussions among friends, family, lovers, or colleagues could immediately become public,” it said.

Marginalized groups rely on encryption to avoid revealing information that could put them in danger, the brief said. People with political, religious or social views “outside the mainstream" depend on encryption to support "candid discussion," and encryption is also essential in the business and legal worlds for proprietary information and attorney-client communications, it said.

End-to-end encryption “is critical to protect the integrity and security of digital communication,” said Nicole Bembridge, associate director, NetChoice Litigation Center. “But if plaintiffs can get around Section 230’s protections by targeting ‘product design,’ online services could soon be punished for protecting users’ private messages from unauthorized access,” she said.

The appeals court should “intervene and clarify the scope of Section 230 immunity in this case,” said the brief.