Hey everyone. Law.com’s Ian Lopez here with the week’s major events from law’s intersection with technology (including law firms weighing in on autonomous vehicle legislation). We’ve got a lot in store for you today, too. First up, Grindr’s key role in a consequential Section 230 spat. Also on deck, a look at expunged criminal records popping up online. And, why an SEC commissioner has been nicknamed “CryptoMom.”
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Grindr & ‘Troll’s Lawyer’ Square Off, Over Future of Web Immunity?
Here’s a novel question: Does an app with geolocation abilities, and that could be perceived as generating its own content, qualify as an interactive computer service as defined by Section 230 of the Communications Decency Act?
Attorney Tor Ekeland—dubbed ‘The Troll’s Lawyer’ for previously repping controversial internet personalities—brought that question before the U.S. Court of Appeals for the Second Circuit in reviving a harassment suit against dating app company Grindr. The lower court tossed the case under Section 230 immunity grounds (i.e., those that protect companies like Facebook from liability over content published by users.)
It’s an interesting case where restaurant worker Matthew Herrick claimed an ex-boyfriend used his likeness to create a fake Grindr profile to direct men to his workplace and home for months. Herrick then brought suit against Grindr on product liability grounds, alleging the company did nothing to halt his harassment. What’s more, Ekeland and Herrick said in their lawsuit that because of Grindr’s geolocating features as well as its ability to generate content using drop-down menu “categories,” like those labeling Ekeland “as interested in hardcore sex,” the company is not protected by Section 230.
Some, like NBC’s David Ingram, note the case could bring about significant changes to the way Section 230 addresses tech. To get a read on the significance of this case, I dialed Github associate corporate counsel Fred Jennings, who worked at Ekeland’s law firm on the case prior to his current gig. He tells me the case is “the first in any court in this country that I’m aware of dealing with a mobile app where yes, there are parts of that communication system that are third party content, but there are other pieces of data that are owned by the company.” Here’s his take:
“Despite it having been around since the 1990s, there’s just not a whole lot of case law on CDA 230 in this kind of situation. The vast majority of the cases that develop the boundaries of that safe harbor in any district of the country … have been websites. Things like Facebook or Twitter or Craigslist. Those types of services where it’s pretty unequivocal where the content is or is not a third party speaking on the party’s platform.”
Meanwhile, the Electronic Frontier Foundation said the case is “misguided” and may pose a threat to free speech. In an amicus brief, the EFF wrote, “Given the scale, operators of third-party platforms, except perhaps the very largest ones, are unable to monitor the content being posted through them; as a result, many platforms would not be able to exist without the immunity from publisher-liability Section 230 provides.”
And cases like Herrick’s, the EFF adds, “threaten the ability of all online platforms to offer Internet users robust and open forums for speech.”
➤ Looking Ahead: The outcome of this case could have significant implications on just how far Section 230 protections go.
Protocol: 2 Things to Know
➤ Origin Story. Remember that whole $11.4 billion bitcoin origin suit out of Miami-Dade? It’s set to go to trial in federal court this September, with the estate of the late David Kleiman arguing that former business partner Craig Wright—an Australian credited with coining bitcoin—improperly took control of bitcoin as well as intellectual property that allegedly belonged to Kleiman. As Zach Schlein reports, the order to proceed to trial comes after U.S. District Judge Beth Bloomdismissed just two of nine counts levied against Wright, with the green-lighted counts including breach of fiduciary duty, fraud and unjust enrichment.
➤ CryptoMom is what startups and coin traders are calling SEC commissioner Hester Peirce, whom the Wall Street Journal describes as having “made waves with a number of contrarian positions.” It was her lone-wolf status in casting a vote this past summer to allow “what would have been the first retail investment tied to bitcoin” that earned her the nickname. She’s maintained her cred among crypto backers ever since, having voted against a $250,000 penalty against crypto company Airfox, as well as criticizing an SEC rejection of an exchange-traded pushed by the “bitcoin billionaire” Winklevoss twins. WSJ’s Dave Michaels writes that Peirce claimed “the logic” for passing on the product, “if extended to other commodities, would have prevented the sale of exchange-traded funds that track the price of gold or oil.”
On The Radar: 3 Things to Know
➤ A Storm may be looming on the horizon for The Weather Channel, and it’s coming from Los Angeles. The city is suing TWC Product and Technology LLC, alleging in a complaint that it “deceptively used” its Weather Channel app to surreptitiously collect user geolocation data for years to sell to third parties. If that rings a bell, it’s because geolocation tracking and sharing is the root of lawsuits against Google and Facebook that came once the public began wising up to how their location data was being shared (see here). In the Weather Channel spat, the company is accused of violating California’s Unfair Competition Law by not disclosing the collection, even when users aren’t using the app. A Weather Channel spokesperson told CNN the company “has always been transparent with use of location data; the disclosures are fully appropriate, and we will defend them vigorously.”
➤ Blocked. As if Facebook couldn’t get you into enough trouble. A unanimous panel for the U.S. Court of Appeals for the Fourth Circuit on Monday said that Loudoun County Board of Supervisors chair Phyllis Randall violated Brian Davidson’s First Amendment rights when she blocked him from her “Chair Phyllis Randall” Facebook page. As Reuters reports, Randall blocked Davidson after he accused “school board members and their relatives of corruption and conflicts of interests.” Randall had asserted the page was a private site, which U.S. District Judge James Cacheris rejected. Cacheris described its “interactive component” as a public forum, meaning she’d illegally discriminated against Davidson’s point of view.
➤ Expungement Impossible? Think the internet is unforgiving? Talk to those who have had a criminal record expunged only to still find it in a Google search. That’s what happened to “Alan,” the focus of a Slate article chronicling how expunged criminal records still find their way online. His booking photo and info popped up on government sites and “online mug-shot galleries” two months post expungement. “The local police department posts a PDF file of weekly arrests, which was indexed by Google, and it shows up for search results of Alan’s name,” Sarah Esther Lageson writes. “Further, the local county jail roster allows users to search for previously jailed inmates who had since been released.” And Alan isn’t alone. Websites and criminal justice agencies are both totally in line with the lawwhen leaving criminal records on the web, while republishing public info first made available by the government is constitutionally sound. Lageson adds that “forcing a website to take down public records would violate the First Amendment.”
Is Autonomous Vehicle Legislation Taking a Back Seat This Year?
We may be mere miles away from driverless vehicles becoming the norm. But is the law ready to keep up?
Congress’ attempt to pass legislation on the issue by the end of 2018 was a no-go, with law firm Faegre Baker Daniels characterizing the “failure” as the result of safety concerns posed by Democrats. Likewise, Dentons added “tepid, on-again-off-again- support” of nonprofit lobbying organization American Association for Justice as among the reasons why.
Yet innovation may be inevitable. “AV technology is proven and it is ready to go,” O’Melveny’s Melody Drummond Hansen said in an emailed statement. (Hansen takes thing a step further and counts flying cars as a possibility.) Yet she noted “safety remains a perennial topic for companies, regulators and the public,” though added that those behind the technology bear responsibility for getting others on board with its advancement.
“AV innovators will have to craft consumer messages to accurately reflect the capabilities and limitations of AV, and offer guidance on how users can contribute to safety,” she said.
Dentons takes a bleaker view of AV law’s potential in the near future. Its blog post on the topic characterizes “the fact that no federal overhaul of AV safety regulations will come to pass in the immediate future” as “black and white.” Yet the firm does express hope for legislation down the road:
“Any legislation aimed at overhauling federal motor vehicle safety standards will likely take a backseat initially in the newly Democratically controlled House, which is focusing in the short-term on voting rights, campaign finance, and government ethics. However, given the non-partisan nature of updating Federal Motor Vehicle Standards to accommodate the autonomous revolution, new autonomous vehicle legislation will certainly be discussed.”
What’s more, Faegre Baker Daniels characterizes autonomous vehicle as “one of the few areas where bipartisan consensus seems achievable,” adding that states are already moving to shift things into gear.
“With no federal law on the horizon for now, the AV revolution will be born on the streets of Pennsylvania, Arizona and other states that have welcomed Silicon Valley’s innovation with open arms. According to the National Conference of State Legislatures, 29 states now have autonomous vehicle legislation. The bills range in restrictiveness—and by topic,” the firm added.
➤ Looking Ahead: While federal legislation for autonomous vehicles has so far fallen flat, the bipartisan nature of safety concerns around inevitable technology, lawmakers are likely to keep the doors open to at least begin discussing potential new frameworks.
Thanks for reading! Buckle up for next week.