Whether a website should face accountability for the actions of its users is getting new examination in a harassment suit against dating service Grindr.
Arguing Monday before a three-judge panel for the U.S. Court of Appeals for the Second Circuit, attorney Tor Ekeland asked to revive a suit in which his client alleges an ex-boyfriend created a fake Grindr account under the client’s name, then used the profile to send app users to the client’s house and workplace. The suit was previously tossed under immunity granted to online services for third-party created content via Section 230 of the Stored Communications Act (CDA).
In the underlying case, Ekeland said, there wasn’t sufficient evidence that Grindr, which operates as a mobile app rather than website, fit Section 230’s definition of an interactive computer service, or ICS, rendering the service liable.
“The ICS [status] isn’t a given, it’s something you have to analyze. It’s arguable whether this falls into CDA policy,” Ekeland said. In the district suit, he noted, “a lot of people [were] playing computer scientist” when expert analysis was needed.
Amended in April 2017, the lawsuit was brought on products liability grounds as the plaintiff, New York restaurant worker Matthew Herrick, alleged that the company’s geolocating feature had security flaws. Herrick claimed that Grindr failed to take action in helping him address the fake profile, which allegedly used Herrick’s geolocation to “direct strangers to plaintiff’s home and work addresses.”
Ekeland said in a phone interview after Monday’s argument that alleged stalkers used competitors to Grindr to stalk his client, and that the competitors addressed his client’s concerns right away. “It’s not we were asking for this expensive, hard fix. We wanted them to use the technology that’s been around for decades,” Ekeland said. “So when someone puts up a photo of Matthew, just block it.”
The lawsuit also argued that information that was used to allegedly harass the plaintiff—including “categories in its drop-down menus” portraying him “as interested in hardcore sex”—were created by Grindr and thus outside the scope of the CDA.
“I do a lot of computer law cases all over the country,” noted Ekeland, who was dubbed by Wired as “the Troll’s Lawyer” for representing controversial internet personalities like the alt-right hacker weev. “The courts are struggling to deal with the rapid-fire technological change, and these new fact patterns have never existed before.”
The Monday panel, however, questioned Ekeland’s assertions that Grindr had been geolocating Herrick, given that neither the suit nor Ekeland asserted he was using the service during the time of the alleged harassment. U.S. Circuit Judge Reena Raggi asked whether such a scenario would render the company “irrelevant to harassment” the plaintiff suffered due to the fake account. Likewise, Circuit Judge Dennis Jacobs noted that the places in which Herrick was being contacted—his home and workplace—could be found via means outside geotracking.
“It’s not as if people were locating him in the subway or restaurant,” Jacobs said, also questioning Grindr’s responsibility.
However, in the view of Fred Jennings, a former attorney for Ekeland’s Tor Ekeland Law practice who now serves as Github’s associate corporate counsel, the question of whether Herrick had the app isn’t central.
“It sort of sidesteps the main fact that we don’t have the details of what was on this person’s phone, what sort of techniques were used to obtain or fake that geolocation data,” said Jennings, who worked on the case prior to departing Tor Ekeland Law. The lower court dismissed the suit without compelling Grindr to disclose how their geolocation works, and Jennings noted that the company could have been tracking Herrick after such an app was deleted, or that someone could have been “geospoofing” him.
Grindr’s counsel, Bryan Cave Leighton Paisner partner Daniel Waxman, didn’t respond to request for comment. In Monday’s arguments, however, he characterized the suit as a “straightforward CDA case.” Waxman said that even as an app, Grinder is immune.
“People are allowed to connect on a single server,” Waxman said. “No difference between that and Facebook and Instagram.”
Likewise, Waxman noted that without the app on Herrick’s phone at the time of harassment, “there is no way the geolocation feature has anything to do with this case,” and that even if someone were geospoofing Herrick, that would be user-generated content, and Grindr would still be immune.
“Mr. Herrick didn’t have the app,” he said. “If Grindr somehow magically tacked people without the app, open or [just] on the phone, then Grindr would still be CDA immune.”
Yet Waxman likewise faced his share of skeptical questioning and commentary from the panel, with Judge Jacobs noting, “Your entire argument so far is this is magical and impossible.”
Additionally, Raggi asked whether other Grindr users were able to see how far Herrick was from them at any moment.
“I don’t think geolocation had anything to do with this,” Waxman replied, adding that it was just Herrick’s location that was provided, as per user messaging.
And, when pressed by Raggi whether Herrick deleted the app prior to harassment, Ekeland said he wasn’t sure, but that Grindr nevertheless should have shut the profile down upon being informed of its existence.
There are “too many unanswered questions in this case for it to be dismissed,” he added.
Grindr didn’t respond to a request for comment.