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Protocol | Policy

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.

Protocol | China

China’s edtech crackdown isn’t what you think. Here’s why.

It's part of an attempt to fix education inequality and address a looming demographic crisis.

In the past decade, China's private tutoring market has expanded rapidly as it's been digitized and bolstered by capital.

Photo: Getty Images

Beijing's strike against the private tutoring and ed tech industry has rattled the market and led observers to try to answer one big question: What is Beijing trying to achieve?

Sweeping policy guidelines issued by the Central Committee of the Chinese Communist Party on July 24 and the State Council now mandate that existing private tutoring companies register as nonprofit organizations. Extracurricular tutoring companies will be banned from going public. Online tutoring agencies will be subject to regulatory approval.

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Shen Lu

Shen Lu is a reporter with Protocol | China. She has spent six years covering China from inside and outside its borders. Previously, she was a fellow at Asia Society's ChinaFile and a Beijing-based producer for CNN. Her writing has appeared in Foreign Policy, The New York Times and POLITICO, among other publications. Shen Lu is a founding member of Chinese Storytellers, a community serving and elevating Chinese professionals in the global media industry.

After a year and a half of living and working through a pandemic, it's no surprise that employees are sending out stress signals at record rates. According to a 2021 study by Indeed, 52% of employees today say they feel burnt out. Over half of employees report working longer hours, and a quarter say they're unable to unplug from work.

The continued swell of reported burnout is a concerning trend for employers everywhere. Not only does it harm mental health and well-being, but it can also impact absenteeism, employee retention and — between the drain on morale and high turnover — your company culture.

Crisis management is one thing, but how do you permanently lower the temperature so your teams can recover sustainably? Companies around the world are now taking larger steps to curb burnout, with industry leaders like LinkedIn, Hootsuite and Bumble shutting down their offices for a full week to allow all employees extra time off. The CEO of Okta, worried about burnout, asked all employees to email him their vacation plans in 2021.

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Stella Garber
Stella Garber is Trello's Head of Marketing. Stella has led Marketing at Trello for the last seven years from early stage startup all the way through its acquisition by Atlassian in 2017 and beyond. Stella was an early champion of remote work, having led remote teams for the last decade plus.

It’s soul-destroying and it uses DRM, therefore Peloton is tech

"I mean, the pedals go around if you turn off all the tech, but Peloton isn't selling a pedaling product."

Is this tech? Or is it just a bike with a screen?

Image: Peloton and Protocol

One of the breakout hits from the pandemic, besides Taylor Swift's "Folklore," has been Peloton. With upwards of 5.4 million members as of March and nearly $1.3 billion in revenue that quarter, a lot of people are turning in their gym memberships for a bike or a treadmill and a slick-looking app.

But here at Protocol, it's that slick-looking app, plus all the tech that goes into it, that matters. And that's where things got really heated during our chat this week. Is Peloton tech? Or is it just a bike with a giant tablet on it? Can all bikes be tech with a little elbow grease?

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Karyne Levy

Karyne Levy ( @karynelevy) is the West Coast editor at Protocol. Before joining Protocol, Karyne was a senior producer at Scribd, helping to create the original content program. Prior to that she was an assigning editor at NerdWallet, a senior tech editor at Business Insider, and the assistant managing editor at CNET, where she also hosted Rumor Has It for CNET TV. She lives outside San Francisco with her wife, son and lots of pets.

Protocol | Workplace

In Silicon Valley, it’s February 2020 all over again

"We'll reopen when it's right, but right now the world is changing too much."

Tech companies are handling the delta variant in differing ways.

Photo: alvarez/Getty Images

It's still 2021, right? Because frankly, it's starting to feel like March 2020 all over again.

Google, Apple, Uber and Lyft have now all told employees they won't have to come back to the office before October as COVID-19 case counts continue to tick back up. Facebook, Google and Uber are now requiring workers to get vaccinated before coming to the office, and Twitter — also requiring vaccines — went so far as to shut down its reopened offices on Wednesday, and put future office reopenings on hold.

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Allison Levitsky
Allison Levitsky is a reporter at Protocol covering workplace issues in tech. She previously covered big tech companies and the tech workforce for the Silicon Valley Business Journal. Allison grew up in the Bay Area and graduated from UC Berkeley.
Protocol | China

Livestreaming ecommerce next battleground for China’s nationalists

Vendors for Nike and even Chinese brands were harassed for not donating enough to Henan.

Nationalists were trolling in the comment sections of livestream sessions selling products by Li-Ning, Adidas and other brands.

Collage: Weibo, Bilibili

The No. 1 rule of sales: Don't praise your competitor's product. Rule No. 2: When you are put to a loyalty test by nationalist trolls, forget the first rule.

While China continues to respond to the catastrophic flooding that has killed 99 and displaced 1.4 million people in the central province of Henan, a large group of trolls was busy doing something else: harassing ordinary sportswear sellers on China's livestream ecommerce platforms. Why? Because they determined that the brands being sold had donated too little, or too late, to the people impacted by floods.

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Zeyi Yang
Zeyi Yang is a reporter with Protocol | China. Previously, he worked as a reporting fellow for the digital magazine Rest of World, covering the intersection of technology and culture in China and neighboring countries. He has also contributed to the South China Morning Post, Nikkei Asia, Columbia Journalism Review, among other publications. In his spare time, Zeyi co-founded a Mandarin podcast that tells LGBTQ stories in China. He has been playing Pokemon for 14 years and has a weird favorite pick.
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