Attempt to Weaponize Section 230(c)(2)(B) Fails on Ripeness Grounds–Zuckerman v. Facebook

November 26, 2024 · by · in Content Regulation, Derivative Liability, Trespass to Chattels

Ethan Zuckerman, a professor at UMass Amherst, wants to code and offer an app he calls Unfollow Everything 2.0, “which would automate the process of unfollowing friends, groups, and pages on a user’s Facebook social media profile.” Because he expects Facebook will block the app, he affirmatively sued Facebook claiming that it couldn’t block the app because the app will be protected by Section 230(c)(2)(B).

This is a kind of 4D chess move. The lawsuit attempts to turn Section 230(c)(2)(B) into a legal sword to restrict someone else’s discretion (including legal doctrines like trespass to chattels that normally are unaffected by Section 230) and essentially create a mandatory access right for third-party apps, rather than the statute’s more celebrated function as a liability immunity. As a result, this dispute implicates some provocative Internet Law questions.

The court reaches none of those questions. Instead, the court succinctly says that the case isn’t ripe, so Zuckerman is requesting an unconstitutional advisory opinion. The court says that because the app isn’t coded yet, there’s “uncertainty in how the tool will ultimately be coded, by what technical means it will interact with Facebook, and how long the venture will take…. The absence of a meaningful prototype or functional code distinguishes Unfollow Everything 2.0 from” various precedential cases. In other words:

the dispute must be about this tool, not a tool. Professor Zuckerman, or his investors, want an opinion on legality before they invest further resources into Unfollow Everything 2.0. Federal courts do not, and cannot, exist to give advisory opinions to assist investment decisions.

The court also says it wouldn’t exercise its discretion to hear the dispute even if it had such discretion:

were Professor Zuckerman to prevail, the Court would have to cabin a declaratory relief order based on contingent facts—such as, whether Unfollow Everything 2.0 would be built to x specification or function in y capacity, or whether z provision of the Meta Terms of Service would be implicated. Such guesswork runs counter to the benefit of finality offered by the judiciary.

For now, all of the interesting 4D chess issues will have to wait. However, I doubt this ruling is the final word in the case.

Case Citation: Zuckerman v. Meta Platforms, Inc., 2024 WL 4876949 (N.D. Cal. Nov. 22, 2024)

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Because of the high-profile nature of this lawsuit, I received several reporter inquiries about the case. This is the statement I sent to reporters about the complaint filing:

The complaint raises important and interesting social, legal, and technical questions, none of which I expect the court to resolve. The case probably will be dismissed on procedural grounds for lack of “standing.” Most likely, a court will say that Zuckerman‘s fears of possible future legal liability are currently insufficient for him to initiate a legal battle.
The complaint also raises, but sidesteps, complicated questions about whether Facebook could still block the tool, or prevent users from using the tool, even if Zuckerman got a complete win in court. In other words, if the case resolves Zuckerman‘s legal questions, but Facebook can still exercise “self-help” to protect its interests, what exactly would the case accomplish?
Finally, I don’t understand why Zuckerman combined a user empowerment tool with researchware. While Zuckerman would surely follow ethical research practices, other researchers making identical legal arguments may pose significant cybersecurity and privacy risks that could worry a court. In contrast, if the only question in the lawsuit was whether it was legal to release a tool that helped Facebook users automatically unfollow other users, the case would not raise as many thorny policy questions.
There’s plenty more I could say about Facebook’s interactions with researchers, Facebook’s duplicity about grabbing third-party content while preventing others from doing the same, the role of social media services to prevent privacy and security risks for its users, and exactly what Section 230(c)(2)(B) means in this context. However, I don’t see much value spending lots of time and energy on those topics if the case will never reach those interesting questions due to the procedural limits.