United States: D.C. Circuit Holds That Section 230 Locks Out Locksmiths

Last Updated: July 26 2019
Article by Aaron P. Rubin and Scott Chen

As we noted in our recent post on the Second Circuit case Herrick v. Grindr, LLC, Section 230 of the Communications Decency Act (CDA) continues to provide immunity to online intermediaries from liability for user content, despite pressure from courts and legislatures seeking to chip away at this safe harbor. The Federal Circuit case Marshall's Locksmith Service Inc. v. Google, LLC serves as another example of Section 230's resiliency.

In Marshall's Locksmith, the Federal Circuit affirmed the dismissal of claims brought by 14 locksmith companies against search engine operators Google, Microsoft and Yahoo! for allegedly conspiring to allow "scam locksmiths" to inundate the online search results page in order to extract additional advertising revenue.

The scam locksmiths at issue published websites targeting heavily populated locations around the country to trick potential customers into believing that they were local companies. These websites provided either a fictitious address or no address at all, and falsely claimed that they were local businesses. The plaintiffs asserted various federal and state law claims against the search engine operators relating to false advertising, conspiracy and fraud based on their activities in connection with the scam locksmiths' websites.

The defendant search engine operators moved to dismiss, arguing that they were immune under Section 230, which confers immunity from claims that treat an online intermediary, such as a website or search engine, as the "publisher or speaker" of content provided by another party. The plaintiffs contended, however, that the search engine operators were not entitled to the Section 230 immunity because they had a hand in creating the content at issue.

Specifically, the plaintiffs argued that the search engines were not entitled to Section 230 immunity because they (1) published the websites created by the scam locksmiths while knowing that the locksmiths did not exist at the physical addresses listed in the websites, (2) created "enhanced" content based on the scam locksmiths' websites in the form of map pinpoints that displayed the false locations, including in some cases "less exact" locations where the scam locksmith websites did not provide a specific street address, and (3) created "original content" in the form of false addresses or other information not based on content provided by the scam locksmiths.

The court rejected all three arguments. First, the court held that, regardless of whether the defendants knew that the content in the scam locksmiths' websites was false, publishing such content was "plainly within the immunity provided by Section 230." The court noted that "it is well established that notice of the unlawful nature of the information provided is not enough to make it the [content host's] own speech," citing Bennett v. Google, LLC, in which the Federal Circuit held that "§ 230 immunity applies regardless of whether the defendant acquired knowledge that the published third-party content was false."

The court also rejected the plaintiffs' argument that the defendants lost Section 230 immunity based on the creation of map pinpoints that displayed the scam locksmiths' false locations, holding that the defendants' decisions to present third-party information in a particular form did not constitute the "creation" of information for Section 230 purposes. The court reasoned that "were the display of this kind of information not immunized, nothing would be: every representation by a search engine of another party's information requires the translation of a digital transmission into a textual or pictorial form."

The result was the same for the display of "less exact" map pinpoints. The plaintiffs argued that the defendants used general location information on the scam locksmiths' websites, such as a statement that the locksmiths provide services in a particular city or area code, to "arbitrarily" assign a map location, and that this constituted creation of content that fell outside the Section 230 immunity.

But the court rejected this argument as well for two reasons. First, the map pinpoints were not truly arbitrary and were, in fact, derived from information provided by the scam locksmiths. The court noted that the location algorithm is "merely a consequence of a website design that portrays all search results pictorially, with the maximum precision possible from third-party content of varying precision." Second, the defendant search engines used an automated and neutral method to convert the third-party location data into map pinpoints. According to the court, the defendants' use of such "neutral means" and "automated editorial acts" to translate the location information provided on the scam locksmiths' websites into map pinpoints fell within the Section 230 immunity.

Finally, the court rejected plaintiffs' argument that the defendants should be liable for creating "original content" that was not based on information provided by third parties. Based on the opinion, it appears that the only such purportedly original content that plaintiffs addressed in both their appellate briefs and amended complaint was the same "false" or "fictitious" addresses that the court had already addressed.

For supporters of Section 230, Marshall's Locksmith is an encouraging example of the statute's staying power. However, the court does provide a note of caution that Section 230 immunity is not limitless, rejecting in somewhat gratuitous fashion the defendants' "remarkable suggestion at oral argument that they would enjoy immunity even if they did in fact entirely fabricate locksmith addresses." In any event, rest assured that we will continue to monitor the latest Section 230 developments here at Socially Aware.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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