Here are Communications Litigation Today's top stories from last week, in case you missed them. Each can be found by searching on its title or by clicking on the hyperlinked reference number.
Section 230
None of the arguments from three remaining groups of defendants in an FTC robocall case withstands scrutiny, said DOJ’s opposition (docket 3:23-cv-00313) to the three motions to dismiss Wednesday in U.S. District Court for Southern California in San Diego. DOJ sued on the FTC’s behalf in February (see 2302170050) to stop a network of companies and individuals allegedly responsible for delivering “tens of millions” of unwanted VoIP and ringless voicemail phony debt service robocalls to consumers nationwide.
U.S. District Judge Daniel Calabretta for Eastern California in Sacramento granted Google’s Jan. 23 motion to dismiss the Republican National Committee’s complaint and its allegations that Google intentionally misdirected the RNC’s fundraising emails to Gmail users’ spam folders at the end of each month (see 2210260080), said Calabretta’s signed order Thursday (docket 2:22-cv-01904). The judge granted the RNC partial leave to amend to establish that Google didn't act in good faith, said the order.
The U.S. Supreme Court should grant the cert petitions of NetChoice and the Computer & Communications Industry Association challenging the restrictions in the Florida and Texas social media platforms’ content moderation laws on First Amendment grounds, said Solicitor General Elizabeth Prelogar in an amicus brief Monday (dockets 22-277 and 22-555).
Permitting a “payment-processor loophole” in Section 230 would thwart the congressional goal “of promoting a vibrant, innovative Internet and e-commerce ecosystem,” said NetChoice and Chamber of Progress in a 5th U.S. Circuit Court of Appeals amicus brief Tuesday (docket 22-16914) supporting Apple’s appeal to reverse the district court’s decision denying it Section 230 immunity (see 2307310046). In the App Store Simulated Casino-Style Games Litigation, the court sided with the plaintiffs’ theory that Section 230 didn’t bar Apple’s liability for processing transactions for virtual currency used within third-party online gambling apps, though it also ruled Section 230 did shield Apple from selling the gambling apps in the App Store. If the 5th Circuit adopts the same theory of Section 230 liability, “app developers could be deprived of key functionality and safe transaction tools that are integral” to digital services’ “trusted app marketplaces,” said the amicus brief. “For small app developers with limited or no resources to invest in facilitating payment processing, this could be particularly harmful,” it said. Consumers and other online users, app developers, and the broader internet ecosystem will also be harmed if the services “are essentially forced by the threat of vexatious litigation to remove their neutral payment processing services from app stores and online marketplaces,” it said. The 5th Circuit “should reverse the district court’s holding that Section 230 does not shield publishers that also offer payment services,” it said. It should also affirm the district court’s determination that Section 230 protects digital services “from claims that they are liable for listing the casino apps,” it said. NetChoice and the Chamber of Progress also filed similar 5th Circuit briefs Tuesday in support of Google (docket 22-16921) and Meta (docket 22-16888).
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.
U.S. District Judge Jeffrey White for Northern California in Oakland recused himself from presiding over former President Donald Trump’s free speech lawsuit against YouTube, said the judge’s signed order Monday (docket 4:21-cv-08009). White, a President George W. Bush appointee, gave no reason in the order for his recusal, except to say he found himself “disqualified” to serve on the case. Trump sued YouTube in July 2021, saying it “increasingly engaged in impermissible censorship” resulting from threatened legislative action, a “misguided reliance” on Section 230 of the Communications Decency Act and “and willful participation in joint activity with federal actors.” YouTube’s status “thus rises beyond that of a private company to that of a state actor,” said the lawsuit. YouTube “is constrained by the First Amendment right to free speech in the censorship decisions” it makes regarding its users, it said.
Google removed a pro se fraud case over a disabled Gmail account from District of Columbia Superior Court to U.S. District Court for the District of Columbia, said a Thursday notice of removal (docket 1:23-cv-02013), saying attempting to hold Google liable for disabling an email account is barred by Section 230 of the Communications Decency Act. Consumer Patricia Baker sued Google June 16, alleging it denied her access to her email account over fraudulent claims her account was involved in content involving a child “being sexually abused or exploited." Baker appealed the action per Google instructions and received a response in March about her YouTube channel instead, saying the channel wouldn’t be put back on YouTube because it violated community guidelines. Baker asserts she wasn’t given details surrounding the alleged email violation or the IP address of the device from which the activity originated. Baker claims breach of contract, fraud and intentional infliction of emotional distress, plus violations of the First, Fifth and 14th amendments. She seeks $2.5 million in damages. Google didn’t comment.
A 2018 anti-sex trafficking law that carved out liability protections for the tech industry doesn’t violate the First Amendment, the U.S. Court of Appeals for the D.C. Circuit ruled Friday in docket 1:18-cv-01552.
The 5th U.S. Circuit Court of Appeals affirmed the district court’s dismissal of minor John Doe’s claims against Snap on grounds that Section 230 of the Communications Decency Act shielded Snap’s conduct from liability, said its opinion Monday (docket 22-20543). Doe was sexually assaulted for nearly a year and a half by his high school science teacher, who used Snap to groom him, said the opinion. Doe eventually sued the teacher and the school district, and against Snap he brought claims under Texas law for negligent undertaking, negligent design and gross negligence, it said. When the district court granted Snap’s motion to dismiss, it explained it and other courts said Section 230 provides immunity to Web-based service providers for all claims stemming from their publication of information created by third parties, it said. Since Doe’s claims against Snap were based on the teacher’s Snap messages to him, the district court found Snap immune from liability, it said. On appeal, Doe asks the 5th Circuit to “revisit this issue,” said the opinion. He cites several authorities “in support of his contention that the broad immunity provided by the CDA goes against its plain text and public policy,” it said. But as Doe himself acknowledges, his argument “is contrary to the law” of the 5th Circuit, it said. The opinion affirmed the judgment of the district court because “we are bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our court or by the Supreme Court.”