Facebook Defeats Lawsuit Over Alleged ‘Shadowbanning’–De Souza Millan v. Facebook

The term “shadowbanning” does not have a single well-accepted definition. In my Content Moderation Remedies paper, I say: “A shadowban keeps a user’s account active, but only the accountholder can see the content.” However, others sometimes use the term as a generic descriptor of undisclosed visibility reduction steps, such as removing an accountholder’s items from internal search indexes.

I can’t say for sure that “shadowbanning” accurately describes what happened to the plaintiff, but close enough. He had multiple Facebook accounts. He posted from one account, but the item didn’t appear when he looked for the item through a different account. He claimed that “Facebook was trying to deceive him into thinking he had posted a publicly visible comment, when in fact the comment was not visible.” Unsurprisingly, his pro se lawsuit goes nowhere.

Section 230(b). Section 230(b) contains a series of policy statements from Congress contextualizing Section 230. The court says: “The plain language of the statute shows that these are merely expressions of Congressional policy. These policies are not substantive provisions that provide a basis for liability, nor do they create a private right of action.” It’s interesting to see litigants trying to create substantive rights out of Section 230(b)’s policy statements–I just blogged about another attempted misuse of 230(b).

Section 230(c)(2)(A). Another misguided attempt to weaponize language that doesn’t support a cause of action: “this provision provides an immunity, so even if Facebook acted discriminatorily, at most that would deprive it of the immunity that the statute provides.”

Section 2000a(a) of the Civil Rights Act (42 USC 1981). “Millan alleges in his amended complaint that Facebook discriminated against him by blocking his post because it wanted to stop him from selling his services. Putting aside the question of whether Facebook constitutes a ‘public accommodation,’ the statute does not prohibit businesses from discriminating on this basis.” Another example of a plaintiff weaponizing civil rights laws to advance goals completely unrelated to the goal of protecting minorities.

47 USC 202. This law applies to “common carriers,” so of course it doesn’t apply to Facebook. The court says the plaintiff “does not allege that Facebook transmits these signals from their point of origin to their point of reception. Indeed, such allegations would be contrary to the general operation of the Internet, in which some companies create digital content and others own and operate the wires and other infrastructure that transmits the digital content to users.” Hello, layers of the telecom stack! Furthermore, the court says Facebook qualified as an “information service” in the “info/telecom services” divide.

ECPA. The plaintiff “voluntarily provided the comment to Facebook in the expectation that Facebook would display it publicly. Millan does not explain how the statute can be construed to prohibit this.”

18 USC 1343. This is an anti-fraud criminal statute without a private right of action.

It’s easy to laugh at the plaintiff’s futility here, but I’m not laughing at all. This is the kind of lawsuit we can expect to see regularly when Congress creates more bases for plaintiffs to sue over content moderation decisions. The impending tsunami of lawsuits pose an existential threat to the Internet as we know it, both due to their defense costs and the countermoves Internet services will make to reduce those defense costs. Congress should be fighting against that outcome. Instead, Congress will lean into it.

Case citation: Rodrigo de Souza Millan v. Facebook, Inc., 2021 WL 1149937 (Cal. App. Ct. March 25, 2021)