Plaintiff Republican National Committee and defendant Google seek deadline extensions to Oct. 10 for the RNC’s amended complaint and Nov. 16 for Google’s response, after U.S. District Judge Daniel Calabretta for Eastern California in Sacramento granted Google’s motion to dismiss the RNC’s allegations that Google intentionally misdirected the RNC’s fundraising emails to Gmail users’ spam folders (see 2308250030), said the parties’ joint stipulation Thursday (docket 2:22-cv-01904). The judge granted the RNC partial leave Aug. 23 to amend within 30 days to establish that Google didn't act in good faith and to show that Section 230 of the Communications Decency Act doesn’t apply to this action. Good cause exists for the requested extensions, said the stipulation. The case “involves numerous complex issues of state and federal law,” and the court’s decision requires the RNC to add “certain factual information,” it said. For similar reasons, additional time for Google to respond to the amended complaint is warranted, it said.

5th U.S. Circuit Court of Appeals Judge Don Willett confronted DOJ attorney Daniel Tenny with questions during oral argument rebuttal Thursday (see 2308100066) about the distinctions between outright government threats to pressure social media to censor content, as would be barred by the district court’s July 4 injunction, and more subtle forms of persuasion that may or may not be barred. The injunction is stayed, pending DOJ’s 5th Circuit appeal, and the government is asking the court to reverse it. Willett, a President Donald Trump 2018 appointee, specifically asked Tenny for DOJ’s view on whether President Joe Biden’s July 2021 statement that social media platforms were “killing people” by spreading COVID-19 vaccine disinformation was the type of government rhetoric that the injunction would prevent. There was “no threat in that statement,” said Willett, but it was “powerful nonetheless.” Tenny agrees that “it may be a powerful statement,” he told Willett. “So the legal question then would be, is it proper for a district court to say that the president can’t make powerful statements, trying to persuade the public what people should or should not do?” It’s correct that Biden isn’t subject to the injunction, said Tenny. But if a White House press secretary “said that about the president’s views, that would be subject to it,” he said. “It’s extraordinary to say, if the president’s view is that certain conduct of disseminating information is harming the public safety of the United States of America, that the press secretary cannot express that view,” he said. If statements like those are backed by a threat, “that’s different,” he said. “But that’s not what happened in this case,” he said.

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.

A 2018 anti-sex trafficking law that weakened liability protections for the tech industry is still a “bad law” that endangers the lives of sex workers, the Electronic Frontier Foundation said Friday after an unfavorable decision from the U.S. Court of Appeals for the D.C. Circuit in docket 1:18-cv-01552 (see 2307070052). "We are disappointed in the court's ruling and discussing options for moving forward with the clients,” said EFF Civil Liberties Director David Greene. The Fight Online Sex Trafficking Act (FOSTA) “continues to be a bad law that has forced sex work back on to the streets and otherwise endangered the lives of sex workers and others." said Bob Corn-Revere, an attorney for the Woodhull Freedom Foundation. He said plaintiffs didn’t get the “constitutional ruling we sought, [but] the court narrowed FOSTA's reach by interpreting it narrowly to avoid many of the potential applications we feared.” The court cleaned up after Congress and interpreted FOSTA “narrowly to reach only speech that is integral to criminal conduct,” he said: The court concluded FOSTA doesn’t “reach the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse. Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution."

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.”

The instant-messaging app Telegram and online dating app Scruff “acted in dereliction of their duties as internet service providers by failing to adequately monitor and police against” the sexual trafficking and exploitation of young children on their platforms, alleged a complaint Wednesday (docket 2:23-cv-02519) in U.S. District Court for South Carolina in Charleston. The plaintiff filed it under the pseudonym Jane Roe on behalf of her five-year-old son. Telegram and Scruff “are fully aware of the ongoing sexual abuse of children through the use of their social media products,” yet they refuse to comply with the requirements of the Children's Online Privacy Protection Act, it said. Telegram and Scruff have had “actual knowledge that sexual predators” were using their apps, but did little to stop enabling them, it said. Though Section 230 “has been credited with allowing the internet to flourish and enabling innovation in the online space,” it also enabled online platforms “to avoid responsibility for harmful or illegal content, such as hate speech, cyberbullying, and sex trafficking,” said the complaint. “Section 230 is no shield” for the conduct of Telegram and Scruff in this case, but plaintiff Roe anticipates that they will raise Section 230 in their defense, it said. Neither platform responded to requests for comment Thursday.

Thursday’s U.S. Supreme Court decisions declining to address the application of Section 230 in two terrorist-related cases (see 2305180049) emphasize "the urgency for Congress to enact needed reforms to Section 230,” said House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., in a statement. The law “hasn’t been meaningfully updated since the Communications Decency Act was enacted, nearly three decades ago,” she said. “The online ecosystem has changed drastically since then, which is why we must update the law intended to hold these companies accountable.” But Michael De Dora, Access Now’s U.S. policy and advocacy manager, said the SCOTUS decisions in the two cases "preserve fundamental protections for freedom of expression online.” People in the U.S. and abroad “rely on social media platforms to exercise their rights, and it’s critical that democratic institutions do their job and protect the ability of such platforms to operate in a complex digital world,” he said.

San Diego-based Frantz Law Group, which has 18 cases in the Social Media Adolescent Addiction/Personal Injury Products Liability Litigation (docket 4:22-md-3047) in U.S. District Court for Northern California in Oakland, filed four more cases in the same court Monday against Facebook Instagram, Snap, TikTok and YouTube. The nearly identical complaints, co-filed with Butler, Pennsylvania-based Dillon McCandless, involve four schools and 968 students in Sayre (docket 4:23-cv-02100) schools; three Windber area schools with 1,225 students; three Freedom area schools with 2,233 students; and four McKeesport area schools with 3,099 students. All four districts are in Pennsylvania. The suits allege public nuisance, negligence and racketeering. Plaintiffs seek an injunction against the social media platforms’ public nuisance behavior; equitable relief to fund prevention education and treatment for excessive and problematic social media use; actual, compensatory and statutory damages; and attorneys’ fees, interest and legal costs. The social media MDL listed over 220 cases Monday.