He opposes the lawsuit
In the proposed class action consolidated in the US District Court for the Northern District of California, the plaintiffs allege that the platform is liable for its involvement in providing, promoting and processing transactions for illegal third-party social casino games.
The platforms have asserted immunity under Section 230 of the Communications Decency Act, which protects them from liability for third-party content, with mixed success. The case is giving federal courts another chance to redefine the scope of that legal shield.
Eric Goldman, a professor at the Santa Clara University School of Law, said the stakes are high when it comes to Internet regulation.
“Any decision that weakens the defenses of app stores is potentially very significant,” Goldman said.
Illegal gambling?
District Court Judge Edward D’Davila ruled that the tech giants could be held liable for their own conduct on the theory that they carried out illegal transactions as part of illegal gambling enterprises.
After dismissing the plaintiffs’ two other theories under section 230 for their infirmity, Davila affirmed his decision to seek immediate interlocutory appeal, citing uncertainty as to the application of the statute.
Goldman said he views apps and app stores as a “pure good,” and is concerned about the potential impact of the decision on the desire to host apps on the platform and the developers’ willingness to develop them.
“We should encourage them to clean up draft applications, but we can’t expect them to do it right,” Goldman said. “If hardware systems are responsible for failure, they won’t try. We’ve understood that for over 30 years.”
But not everyone agrees that the broad immunity under Section 230 is a good thing.
Some judges, including Davila, have criticized the scope and asked Congress to reconsider the 1996 law.
The White House announced Thursday that it is exploring changes to the law, including removing special protections for large tech platforms, aimed at expanding accountability.
In the meantime, plaintiffs seeking to hold Big Tech responsible for third-party content will have to contend with the law.
Todd Logan, a partner at Edelson PC representing the plaintiffs, said: “The CDA was never intended to reach this kind of behavior, and we believe that the court will seek to hold the platforms accountable for their own behavior.” In litigation, he said.
Counsel for Apple, Google and Facebook did not immediately respond to requests for comment.
‘rational mind’
According to Davila, under the Ninth Circuit, “reasonable minds may differ from the actual outcome of the case.”
Goldman, who thinks the court should have tossed out all the theories, said some of the confusion came from the Ninth Circuit’s 1999 decision. Gonzalez v. Google LLC.
Section 230 does not automatically bar claims based on the theory that Google shared revenue with ISIS in violation of the Anti-Terrorism Act, the Ninth Circuit said.
The court said that the “best showing” that the revenue-sharing allegations were not based on the content of the videos “could be remedied without changing the content posted by YouTube users.”
Put another way, Google just had to stop sending money to ISIS to comply with the law. It does not need to track or download user content.
In the case of Social Casino, the surviving theory was based on the platforms running illegal transactions for illegal gambling, which Davila allegedly committed as “their own”.
The plaintiffs said the platforms were not responsible for the content of the social casino apps, but rather for allegedly engaging in illegal gambling-related transactions.
Virtual poker chips or “tokens” purchased through the Platform are necessary to play the game and cannot be exchanged for cash.
Still, the Ninth Circuit has found that tokens for playing casino-type games can be valuable under certain state gambling laws.
More pressing questions
The principle laid down in GonzalezAccording to Matt Perrout, a law professor at the University of North Carolina—that a forum is responsible for its own behavior—is straightforward, even if its application to reality is complicated or leaves forums up for debate.
A more pertinent question for appellate review, Perault said, is “Are technology platforms now feeding people’s data in such a way that they are moving from being a provider of interactive computing services to a provider of informational content?”
That question is whether the platforms helped develop the content by helping to promote casino apps and target users.
Although Davila decided to deny the Section 230 claim, he said it was a “very difficult” case.
Perault says it’s reasonable to question whether algorithms are more akin to content creation than editorial decision-making, but platforms shouldn’t be held accountable for such activity.
“The algorithm is more akin to deciding what’s on the front page than writing the story itself,” Perel said.
Davila immediately affirmed the entire decision for both plaintiffs and forecourts to challenge the decision dismissing the lawsuit in part.
The parties will have 10 days from Sept. 2, taking Davila, to file an immediate appeal, and the Ninth Circuit must still agree to the preliminary review.
