Plaintiffs Tried to Plead Around Section 230. It Didn’t Work–Ziencik v. Snap

I previously summarized this case:

This case involves two Snapchat users who repeatedly received threatening messages from other Snapchat users despite the victims’ efforts to block the perpetrators. A victim flagged messages for Snapchat, allegedly to no effect, and law enforcement may have felt like Snapchat ghosted them and then dragged its feet in replying. However, Snapchat eventually turned over the perpetrators’ identities to law enforcement in both cases. The victims still think Snapchat should have used its magic wand to prevent third parties’ anti-social conduct.

The district court initially dismissed all of the claims for their lack of merit, after discussing Snap’s Section 230 defense irresolutely. The plaintiffs tried again, with the same result. Next stop: the Ninth Circuit.

Section 230. To get around the obvious Section 230 problem that the plaintiffs’ claims are actually based on the third party’s harassing content, the plaintiffs affirmatively disclaimed that they were suing based on the harasser’s messages or Snap’s failure to block him. This kind of concession nominally opts-into the Lemmon v. Snap playbook, but it seems pretextual. Of course the plaintiffs are actually complaining about the third-party content; without that harassment, no one cares about Snap’s alleged failings.

Nevertheless, the gambit successfully navigates around Section 230 because:

Plaintiffs here argue that Snap breached a duty to provide information about Joshi to law enforcement….Plaintiffs’ claims for Snap’s failure to respond to requests from law enforcement do not, “at bottom,” seek to hold Snap liable for Joshi’s content—they are focused squarely on Snap’s own conduct.

Assuming the court is right the move isn’t pretextual, it’s still a Pyrrhic victory for the plaintiffs. First, several times the plaintiffs lapse back to exposing their true agenda that they are really suing over the harasser’s content, and each time the court reminds the plaintiffs that they waived that aspect of the claim because otherwise Section 230 would end it. Second, by twisting the claim to avoid Section 230, the plaintiffs adopted such a narrow issue that they pleaded themselves out of any claim.

Negligence. Among other things, the plaintiffs argued Snap had a special relationship to the plaintiffs, which was a hail mary because ordinary customer-vendor relationships are not “special” enough (compared to, say, fiduciary relationships which may impose extra duties). Unsurprisingly, the assertion doesn’t work:

Plaintiffs have not identified a case finding a special relationship between a social media app and its users….Plaintiffs fail to plead any facts demonstrating how their relationship with Snap made them particularly vulnerable such that they had a right to expect protection from Snap

To manufacture a duty, the plaintiffs pointed to Snap’s 2018 Law Enforcement Guide. The court says that document doesn’t make any promises that would help the plaintiffs, plus its audience was law enforcement, not users.

The Stored Communications Act can’t create the duty because the applicable provisions only authorize service providers to voluntarily disclose information to law enforcement, not compel it.

Stored Communications Act. As the court already indicated, “the subdivision of the SCA upon which Plaintiffs rely does not require Snap to do anything, but affords Snap the discretion to disclose information in the case of an emergency.”

UCL/FAL/CRLA. The plaintiffs need to show they suffered economic losses to advance these claims:

Plaintiffs contend that they suffered economic harm by allowing Snap to place ads targeting them on Snapchat. Other district courts in this circuit have found an economic injury based on a similar theory, the collection of browsing data, but only where the plaintiffs had specifically alleged (a) that users’ “‘information and attention’ has a cash value, which can be approximated” by reference to objective measures, and (b) that specific, identified companies “have been willing to pay users for information and attention.” But Plaintiffs have not made such allegations here.

To be clear, every plaintiff can argue that ads monetized their attention against every ad-supported business. That’s what it means to be an ad-supported business. However, this argument ignores the possibility that the ads create utility to the recipients, so the ads may have been an economic benefit to the plaintiffs, not a “loss.” As a result, this entire premise (attention consumption is always an economic loss) is deeply misguided. For more on the proper economic accounting of attention consumption, see this paper.

Nevertheless, the plaintiffs weren’t “consumers” of Snap. “Plaintiffs have cited no authority for the idea that exchanging personally identifiable information for use of a free social networking application constitutes a “purchase” or “lease” under the CLRA, and other courts already have rejected this idea.” (Cite to Claridge v. RockYou).

Misrepresentation. The plaintiffs didn’t show any misrepresentation with respect to the claim they twisted to (delayed disclosure to law enforcement).


Snap’s Busy Legal Docket. Snap gets a win here, but their overall legal position is tenuous and getting worse. They are embroiled in multiple existential battles, including the awful Neville v. Snap. Given how often Snap is now appearing on this blog and the consequences of their legal advocacy for the entire Internet, I’m thinking of renaming this blog the “Snap Litigation Blog.”

Plaintiffs Lost on the Merits, Not on Section 230 Grounds. Section 230 cast a long shadow on this case because the plaintiffs twisted their claims to avoid Section 230. Nevertheless, they repeatedly tried to claw back what they had given up and implicate third-party content, which the court shut down. Still, in the end, the plaintiffs lost on the lack of merits, not due to Section 230. So this case goes down as another example of a case where Section 230 reform wouldn’t have changed the results of this opinion.

Still, the Legal Future Looks Bleak. The post-Lemmon v. Snap caselaw shows how plaintiffs will stack a bunch of claims (even dubious ones) to throw hail marys and jack up defense costs for extra leverage. Until the courts emphatically shut down this kind of (un)strategic pleading, Section 230’s procedural benefits will be substantially eroded in ways that have substantive effects on UGC services. Worse, if any plaintiff finds any gap in Section 230 through this relentless and repetitive stress-testing of legal doctrines, Section 230 will be nullified without any Congressional amendment at all.

Case Citation: Ziencik v. Snap, Inc., 2024 U.S. Dist. LEXIS 12105 (C.D. Cal. Jan. 19, 2024)