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Tech’s favorite legal shield could be closer to the Supreme Court

Appeals courts have diverged over how to think product liability under Section 230, and the high court may have to step in.

The façade of the U.S. Supreme Court building.

The Supreme Court may soon take up Section 230, if the political opposition to tech's prized legal shield doesn't alter it first.

Image: Joe Ravi

A federal appeals court in San Francisco ruled on Tuesday that Snap can't use Section 230 to get out of a lawsuit by parents who said the app's "Speed Filter" pushed their sons into a fatal car crash in 2017.

That decision, which some scholars of the provision say is at odds with appeals court rulings elsewhere in the U.S., could nudge the Supreme Court toward taking up a case on the law.

"The chances of the Supreme Court interpreting Section 230 for the first time ever increased substantially today," Jeff Kosseff, a law professor at the U.S. Naval Academy who wrote a history of the provision, tweeted.

Section 230 of the 1996 Communications Decency Act immunizes tech platforms from lawsuits over user posts and other third-party content, which the platforms say is necessary to protect free speech and give them free rein to take down the worst content without fear of lawsuits. Opponents, including many lawmakers, say it removes too much incentive for online companies to actually stop harm on their platforms.

The parents in the case said Snap's filter, which allowed users to display their speed, wasn't third-party content and Section 230 doesn't apply. Snap urged dismissal by arguing that the filters exist for users to incorporate into their messages, meaning the suit was essentially holding them responsible for user content, including one of the snaps, despite what Section 230 prohibits. The court agreed with the parents, saying that the filter was essentially a design choice Snap itself had made, allowing a trial to proceed.

The decision echoed some prior cases in that court, but it appeared to be in tension with other decisions elsewhere in the U.S., including a 2019 ruling by a New York appeals court. The judge there cited Section 230 to uphold the dismissal of a case against gay dating app Grindr by a man who claimed defective design and other issues when his ex-boyfriend impersonated him.

"Gorgeous Section 230 decision," the plaintiff's lawyer in that case, Carrie Goldberg, tweeted about the Snap ruling on Tuesday. She said she was glad the court ruled that product design is different from making a platform responsible for third-party content after the New York court in her case "got it so wrong."

The differences in the rulings could ultimately result from different facts, but when appeals courts diverge in what's known as a "circuit split," it tends to raise the probability that the Supreme Court will step in to resolve the varying interpretations of similar issues.

"I think this is widening the divide," Kosseff told Protocol in a follow-up interview, though he noted "a lot of procedural reasons" why this case might not go to the Supreme Court.

If the high court does take up the issue, conservative Justice Clarence Thomas, who has been taking swipes at internet platforms in his statements, already made clear last year he thinks that judges have interpreted the law far too broadly. In a statement citing both the Snap and Grindr cases, he suggested if platforms know about misdeeds, Section 230 might not apply — an interpretation that could upend much of how platforms do content moderation if it became the basis of a ruling.

"The question is whether a critical mass of his colleagues share that view," Kosseff said.

Increasingly, Section 230 is also under political attack. Congress views it as a handout to a powerful industry, and a lever to get them to change their behavior. Lawmakers have blamed it, with varying degrees of sophistication, for providing insufficient reason to take down vile and illegal content including stalking or drug sales and for enabling alleged bias against conservatives. New bills to change the provision pop up constantly.

"I think Supreme Court review of 230 is going to happen — if 230 is not repealed," Kosseff said.

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