D.C. Circuit Issues Sweeping Pro-Section 230 Opinion–Marshall’s Locksmith v. Google
The plaintiffs are self-styled “legitimate” locksmiths who claim that Google gives too much prominence to “scam” locksmiths and that’s hurting their business. They sued the major search engines for eight different legal violations:
The three federal counts allege that the defendants engage in false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), abuse their monopoly power under § 2 of the Sherman Act, 15 U.S.C. § 2, and conspire in restraint of trade under § 1 of the Sherman Act, id. § 1. The five state-law counts allege commonlaw fraud, tortious interference with economic advantage, unfair competition, conspiracy, and breach of contract.
The district court dismissed all of the claims, other than the contract breach, on Section 230 grounds. The DC Circuit affirms.
The DC Circuit runs through the familiar 3-part prima facie elements of a Section 230 defense. The court says that search engines broadly fall within the definition of ICS provider, and the plaintiffs acknowledged that they were suing the search engines as “publishers/speakers.”
Thus, the only question is whether the subject material is third party content. For the most part, this is easy because the “scam locksmith” listings came from third parties. The plaintiffs claimed that the search engines knew the listings were false, but (citing UCS v. Lycos and Bennett v. Google) “it is ‘well established that notice of the unlawful nature of the information provided is not enough to make it the service provider’s own speech.’”
The plaintiffs then claimed that search engines created “[e]nhanced content that was derived from third-party content, but has been so augmented and altered as to have become new content and not mere editorialization.” The example is Google’s placement of the scam locksmiths’ map pinpoints based on their reported GPS location. The court rejects this (emphasis added):
The underlying information is entirely provided by the third party, and the choice of presentation does not itself convert the search engine into an information content provider. Indeed, 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 textual or pictorial form.
This reminded me a little of the copyright owners’ unsuccessful arguments that transcoding user uploads into different file formats disqualified the services for 512(c) (because the transcoded file no longer is stored at the user’s direction). As this court notes, translating information into new formats is an essential step in online publication, so this argument irreparably conflicts with Section 230.
The plaintiffs argued that it was OK to translate legitimate locksmiths’ locations into map pinpoints but not OK for scam locksmiths. The court responds flatly that this distinction is untenable because “Congress has immunized the re-publication of even false information.”
The court requires more finesse evaluating less precise map pinpointing, such as when Google arbitrarily picks a pinpoint based on overly generalized geographic information from the third party. Thus, a scam locksmith in DC will get a pinpoint even when Google only knows that they are somewhere in DC. (A similar issue arises with map pinpoints in Airbnb, which are expressly designed not to be accurate at the street level).
Despite the faux precision of map pinpointing in this situation, the court says Section 230 applies. First, the pinpointing is still based on third-party info. “It is true that the location algorithm is not completely constrained, but that 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, Google uses a “neutral algorithm” to do the pinpointing. Yes, the DC Circuit doubles down on “neutrality” as part of a Section 230 defense, even though the term “neutrality” lacks meaning, design decisions are never “neutral” by definition, and the court uses the term “neutrality” differently than the Klayman and Bennett courts used the terms. SIGH. The court explains why neutrality applies here:
the defendants use automated algorithms to convert third-party indicia of location into pictorial form. Those algorithms are “neutral means” that do not distinguish between legitimate and scam locksmiths in the translation process. The plaintiffs’ amended complaint effectively acknowledges that the defendants’ algorithms operate in this fashion: it alleges that the words and numbers the scam locksmiths use to give the appearance of locality have “tricked Google” into placing the pinpoints in the geographic regions that the scam locksmiths desire. To recognize that Google has been “tricked” is to acknowledge that its algorithm neutrally translates both legitimate and scam information in the same manner. Because the defendants employ a “neutral means” and an “automated editorial act” to convert third-party location and area-code information into map pinpoints, those pinpoints come within the protection of § 230.
On the plus side, the court suggests a definition for “neutrality,” even if the court didn’t bother to define the term explicitly. This passage indicates that “neutrality” applies when “both legitimate and scam information” are handled identically. This would be consistent with the Daniel v. Armslist treatment of “neutral tools,” which it defined as “a feature provided by an interactive computer service provider that can ‘be utilized for proper or improper purposes.'” So perhaps a Section 230 defendant can claim “neutrality” so long as it isn’t expressly prioritizing only illegal content?
Despite the emphatic defense win, the court signals two limits on Section 230. First, the court says:
we do not hold that § 230 protects all information derived from third-party information. Because the defendants’ map pinpoints hew to the third-party information from which they are derived — and because, as we discuss below, the pinpoints are derived neutrally as well as algorithmically — today we need not decide precisely when an entity that derives information can be considered to have “creat[ed] or develop[ed]” it.
Later, the court says:
although we find § 230 immunity warranted in this case, that immunity is not limitless. In this vein, we reject the defendants’ remarkable suggestion at oral argument that they would enjoy immunity even if they did in fact entirely fabricate locksmith addresses. That assertion is plainly inconsistent with the scope of the immunity that Congress has conferred. If the defendants were to fabricate addresses, those addresses would not be “information provided by another information content provider.”
Implications
Section 230 Applies to Antitrust Claims. The court doesn’t expressly discuss it, but Section 230 immunized two different Sherman Act claims. The 230/antitrust interface is under-developed, but this case provides a great citation for the principle that Section 230 applies to antitrust claims.
Section 230 Applies to Conspiracy Claims. Also not discussed expressly, but Section 230 immunizes conspiracy claims. This is a better result than the lousy Tanisha v. Chandra outlier.
Section 230 Applies to Lanham Act False Advertising Claims. This is also not unprecedented, but some courts have struggled with Lanham Act false advertising claims and Section 230 because of Section 230’s “IP” exception and the close relationship between Lanham Act trademark claims and false advertising claims.
Section 230 Applies to False Information. The court makes a pithy, succinct, and unqualified statement that “Congress has immunized the re-publication of even false information.” That’s not new ground, but this is a highly quotable line.
Section 230 Applies to “Known” Problematic Content. It’s also not new ground, but the DC Circuit clearly says that Section 230 applies even when the defendant knows about problematic content. The Daniel v. Armslist ruling goes even further on this point, saying that Section 230 applies to allegations of intent.
Section 230 Applies to Presenting Third Party Content in Different Formats. Several star-rating cases previously established that services can take a user’s numerical rating and present it visually as a star rating, singly or as part of an average. This case extends that principle to say that services can present precise location information in a visual map format.
Section 230 Applies to Imprecise Presentation of Imprecise Third Party Content. This case breaks some important new ground on the presentation of imprecise third party information. The search engines could choose not to display this information in pinpoint format; they could present it as some kind of visual overlay to show the generality of the information; or they could present the information with its ordinary precision but provide a flag or indicator that the precision isn’t necessarily accurate. Those all might be better user experiences than how Google currently handles the situation. Nevertheless, this case says the search engines also has the option to present the information precisely but inaccurately, so long as the presentation is done “neutrally.”
We might consider this ruling as another appellate court using Section 230 to protect a service’s design choices, joining Doe v. Backpage, Herrick v. Grindr, and Daniel v. Armslist.
“Neutrality” Baffles Courts. I can see Sen. Cruz seizing on an opinion like this to say that neutrality indeed is a prerequisite of Section 230. That would be less of a lie than his current claim that Section 230 only protects “neutral public forums,” but only slightly. The “neutrality” required in this case relates only to the balance between legal and illegal content. Still, even when defined narrowly and precisely like in the Daniel v. Armslist case, the term “neutrality” is far more likely to mislead than help judges. In contrast, the opinion cites the O’Kroley case for the proposition that Section 230 protects “automated editorial act[s],” and that phrasing (though still odd) is much better than the term “neutrality.”
Case citation: Marshall’s Locksmith Service Inc. v. Google LLC, 2019 WL 2398008 (D.C. Cir. June 7, 2019)
Prior posts involving litigious locksmiths: