* * *

This is an account termination/content removal case, so you already know the plaintiff is going to lose–the only question is how.

Shared allegedly “creates and publishes original, timely, and entertaining [online] content.” It ran Facebook pages that, at one point, had 25M followers. Shared heavily used Facebook’s self-service advertising, placing over 500,000 ads. Facebook rejected over 18,000 of those ads. The court says “Shared regularly relied on ‘scammy’ ads and ‘blatant clickbait.'” Here is an example of one of their rejected ads:

This ad showed Luke Wilson next to a serious car crash, baiting viewers to click on the ad to check whether he was OK. (He was). Facebook rejected this ad based on its policy against “shocking or sensational content,” including photos that “depict violence.” Shared was upset that it got canned explanations for its ad rejections, rather than personalized roadmaps to correct any problems.

Ultimately, Facebook pulled the plug on Shared’s operations in October 2020. The court summarizes Shared’s claims:

Shared sued Meta for, among other things, conversion and fraudulent inducement, claiming that Meta’s decision to “unpublish[] the Shared [Facebook] Pages” was a business “death sentence.” It based the conversion claim on Meta’s “unpublishing” the Shared Facebook Pages, over which Shared argued it had an exclusive property right.

If none of this makes sense to you, join the club. Conversion is a chattel-based concept, so what is it doing here? It brought to mind the Best Carpet Values v. Google case, where the plaintiff unsuccessfully claimed that web page framing was a trespass to the chattels of intangible web pages. What is it with plaintiffs importing offline chattels-based doctrines into the intangible web?

The lower court dismissed the case. My prior blog post.

* * *

In a published opinion, the Ninth Circuit dismisses the conversion claim on Section 230 grounds. “Shared’s conversion claim seeks to impose liability on Meta for “unpublishing” Shared’s Facebook pages.” Labeling the claim as “conversion” was unusual but not creative or productive. The court responds flatly: “Section 230 bars the conversion claim.”

Shared only contested the publisher/speaker element, arguing that the conversion claim was somehow not that. The court easily rejects that:

Shared sued Meta because the latter exercised its publishing prerogative by removing third-party content—i.e., Shared’s Facebook pages. Such a decision to remove content and prevent someone from posting advertisements is a quintessential editorial decision protected under Section 230.

Shared tried to end-run this obvious conclusion by invoking the Calise/YOLO line of promise-based Section 230 exceptions:

Shared contends that its conversion claim effectively “seeks to hold Meta liable for failing to comply with its promise” not to remove Shared from Facebook “unless Shared ‘clearly, seriously, or repeatedly’ breached Facebook’s Terms or Policies,” which Shared claims it did not.

If you read Calise and YOLO literally, Section 230 should fall away once the plaintiff cites any promise made by the defendant. That did not happen here.

First, the court expresses skepticism about whether any promise was made because the TOS “gives Meta unilateral authority to determine whether a business has breached the Community Standards.” However, that’s not a 230 defense, that would be a failure of the prima facie elements. I’ll note that plaintiffs routinely mine a defendant’s site disclosures to identify and overstate alleged promises that are anything but.

Second,

Calise is of little help because Shared still seeks to meddle with Meta’s publishing discretion….a contractual promise that reiterates the company’s inherent publishing authority still amounts to publishing activity protected by Section 230. [Cite to King v. Facebook.] Indeed, it makes little sense to strip Meta of Section 230 liability defense simply because Facebook articulated its discretion as a publisher in its Terms of Service.

The court distinguishes Barnes: “Yahoo’s one-time promise to a specific user was beyond its typical publishing activity.” The court distinguishes Calise: “Facebook in Calise promised to curb advertisements that ‘defraud[] or exploit[]’ for ‘money or property.’ Such a contractual promise does not sound in editorial discretion but rather represents a business commitment to smoke out scammers.” Do those distinctions persuade you?

The court summarizes:

a claim does not automatically fall outside the ambit of Section 230’s liability protection just because it is framed as a breach of contract. Instead, a court must evaluate a claim to determine whether it seeks to treat an interactive computer service as a publisher or speaker of third-party information. That task may include assessing the core theory of the complaint and the nature of the alleged injurious conduct. In our case, Shared’s claim hinges on Meta’s publishing authority, despite being dressed up in contractual garb. Section 230 thus bars Shared’s claim.

In other words, Shared didn’t like having its account yanked, especially after all of the money it spent on Facebook ads, but it’s Facebook’s editorial prerogative to publish or not publish Shared’s content and ads. The net effect is straightforward: an account termination/content removal case fails even when a plaintiff tries the obtuse framing of conversion. No surprises there.

Yet, if you asked me to explain why Calise’s claim didn’t turn on Facebook’s editorial prerogative but Shared’s claim did, I couldn’t do it persuasively. Maybe one way to reconcile it is that Shared was publishing its own content on Facebook, while the plaintiffs in Barnes, Calise, and YOLO were suing based on someone else’s published content? That sure seems like a fine distinction, and the court didn’t make it clearly.  I imagine the Ninth Circuit will have plenty more opportunities to plumb its purported distinctions. I personally think this decision casts more doubt on the wisdom of both Calise and YOLO.

* * *

In a separate unpublished opinion, the court rejects Shared’s misrepresentation claim on statute of limitations grounds. “Shared received thousands of ad-rejection messages with allegedly inadequate explanations starting in 2016. But it did not sue until six years later.” But also, “even if Shared’s fraud claims were timely, Shared waived its fraud claims through its course of conduct over multiple years” because it kept placing orders despite receiving allegedly defective ad rejections.

Case Citation: The published opinion: Shared Partnership v. Meta Platforms, Inc., 2026 WL 3266791 (9th Cir. Oct. 30, 2026)

The unpublished opinion: Shared Partnership v. Meta Platforms, Inc., No. 25-2612 (9th Cir. Oct. 30, 2026)

Plaintiff’s lawyers were: Cook Alciati of Gardella Alciati, whose bio says he “specializes in intellectual property litigation with a particular emphasis on patent litigation,” and Seth Wiener of San Ramon.

The post Section 230 Blocks Lawsuits That “Meddle” With Online Publishers’ Editorial Decisions–Shared v. Meta appeared first on Technology & Marketing Law Blog.

The City of Poway used the Meta Moderation Assist for its page. It flagged Jalisi’s posts as bot postings because “Plaintiff does not have a profile picture, has only one Facebook friend, and has no posts on his own profile.”

The court says the deployment of Meta Moderation Assist isn’t inherently unconstitutional:

• “the restriction is facially content neutral….[Profiles] are flagged based on the presence of certain predictive factors, such as the absence of a profile picture or the absence of other Facebook friends. Thus, determining whether a comment may be hidden has nothing to do with the content of the comment.” [That’s true, though the tool does account for the content on the profile page.]
• “The City uses Meta Moderation Assist because it “does not have the resources nor ability to actively monitor each and every comment made in real time in order to manually hide bot comments.” There is nothing in the record to suggest that the City turned to Meta Moderation Assist “motivated by disagreement with any particular expressive” conduct. Indeed, Plaintiff’s evidence that identical comments published by other users remained visible actually strengthens the finding that the restriction is content neutral; critical speech is clearly tolerated by the City.”
• “the two-way exchange of information between the citizenry and the City is a substantial governmental interest….the interest runs counter to the suppression of free expression; it seeks to ensure that residents have effective access to the exchange of ideas with their neighbors and their government….. The interest is related to the suppression of expression by non-human bots, but bots are neither “human beings with First Amendment rights” nor the “[corporations] … composed of [them … that] possess First Amendment rights themselves.” [cite to Barrett’s Moody concurrence].”

The court concludes:

on the early record before it, the Court finds that the City has no alternative methods to prevent nonhuman bot accounts from flooding their Facebook page. This is not a situation where there is an obvious, alternative method of regulation that would achieve the governmental interest and incidentally censor no speech….

even assuming the Meta Moderation Assist program can be considered a government restriction on speech, the restriction is content-neutral and on this record survives intermediate scrutiny.

For this reason, the court mostly rejects Jalisi’s TRO request.

Nevertheless, now that Poway knows that Facebook made a false positive when it screened Jalisi’s posts as bot content, the court says Poway must reverse its blocks of his content:

1. Within 24 hours of receiving notice of this Order, restore the public visibility of every comment by Plaintiff that has been hidden on the City’s official Facebook page; and

2. Refrain from hiding, deleting, or otherwise suppressing Plaintiff’s comments on the City’s official Facebook page on the basis of their viewpoint.

This opinion indirectly addresses one of the main questions left open by the Lindke case: if a government entity has a social media account and the social media service exercises its own independent content moderation, how will courts evaluate the constitutionality of the social media’s moderation overlaid on top of any social media policies adopted by the government entity? This court doesn’t directly adddress that issue, but its implicit answer in this case is that anti-bot efforts are likely to survive constitutional scrutiny, though perhaps only if the city corrects known false positives.

Also, now that the simplicity of Facebook’s anti-bot criteria are clearer, Jalisi and other critics can end-run them quite simply.

Case Citation: Jalisi v. City of Poway, 2026 WL 3169675 (S.D. Cal. Oct. 22, 2026)

Related posts:

• Court Greenlights Politician’s Censorship of Social Media Comments–Fox v. Faison
• University of Wisconsin-Madison Censored Animal-Rights Activist on Instagram and Facebook–Krasno v. UWM
• School Board Official Censored Constituent by Blocking Access to Their Social Media Account–Garnier v. O’Connor-Ratcliff
• Government Agencies Can’t Use Dumb Word Filters to Screen Social Media Comments–PETA v. Tabak
• Supreme Court Addresses When Government Employees’ Social Media Accounts are State Action (Lindke & Garnier)
• Politician-Operated Social Media Accounts Raise Many Thorny Legal Issues
• University-Operated Twitter Account is a Limited Public Forum–Gilley v. Stabin
• Constituent Blocking on Twitter Is Censorship–Felts v. Vollmer
• Catching Up on Government Officials’ Censorship of Constituents on Social Media
• Ninth Circuit: Elected Officials Violated the First Amendment by Blocking Constituents on Social Media–Garnier v. O’Connor-Ratcliff
• Sixth Circuit: Government Official Can Freely Censor Constituents at his Public Facebook Page–Lindke v. Freed
• Constituents Can Sue Chicago Alderman for Blocking Their Facebook Comments–Czosnyka v. Gardiner
• Police Department Can Remove Citizen’s Facebook Comments Calling Cops “Pigs”–Sgaggio v. De Young
• City Government Can’t Remove Off-Topic Comments From Its Social Media Page–Kimsey v. Sammamish
• Does the First Amendment Permit Government Actors to Manage Social Media Comments?–Tanner v. Ziegenhorn
• Law Enforcement’s Efforts to Scrub COVID “Misinformation” Online Violated the First Amendment–Cohoon v. Konrath
• State Legislator Doesn’t Understand That He Works for the Government–Attwood v. Clemons
• Politician Can Block Constituents at Twitter–If It’s a “Campaign” Account–Campbell v. Reisch
• Another Politician Unconstitutionally Censored Constituents on Twitter–Campbell v. Reisch
• When Can a Politician Block Constituents on Social Media?–Garnier v. O’Connor-Ratcliff
• Comments on the Hikind v. Ocasio-Cortez Lawsuit Over AOC’s Twitter Blocks
• Pres. Trump Violates the Constitution By Blocking @RealDonaldTrump Followers–Knight First Amendment v. Trump
• Another Government Impermissibly Censors Constituents on Facebook–Robinson v. Hunt County
• Another Politician Probably Violated the First Amendment By Blocking a Constituent on Twitter–Campbell v. Reisch
• Blocking Constituents from Facebook Page Violates First Amendment–Davison v. Randall
• Kentucky Governor Can Block Constituents on Social Media–Morgan v. Bevin
• President Trump Violated the First Amendment by Blocking Users @realdonaldtrump
• Politician Can’t Ban Constituent From Her Official Facebook Page–Davison v. Loudoun County Supervisors
• Deleting Comments to County Facebook Page May Violate First Amendment–Davison v. Loudoun County
• County Attorney’s Deletion of Constituent’s Facebook Comment May Violate First Amendment
• First Amendment Precludes Disorderly Conduct Conviction for Ranting on Police Department Facebook Page

The post City Government Can Use Facebook’s Anti-Bot Tool–Jalisi v. Poway appeared first on Technology & Marketing Law Blog.

Generated by ChatGPT Dec. 2025

Alex Berenson is a one-time N.Y. Times reporter whose life appears to have taken an unfortunate turn in the wake of MAGA and COVID. According to his Wikipedia entry:

During the coronavirus pandemic, Berenson appeared frequently in American right-wing media, spreading false claims about COVID-19 and its vaccines. He spent much of the pandemic arguing that its seriousness was overblown. Once the COVID-19 vaccines became available, he spread misinformation about the safety and effectiveness of the vaccines.

(A reminder that 1.2M Americans died due to COVID).

Berenson aggregated over 200k followers at Twitter who were exposed to his hot takes on COVID and vaccines. That put his account at risk as Twitter cracked down on misinformation and denialism:

In May 2020, Twitter announced that it may append labels or warning messages to tweets related to COVID-19 misinformation. Berenson tweeted that he was “concern[ed] about what the new rules might mean for free speech on [Twitter].” In response, Twitter’s Vice President of Global Communications Brandon Borrman contacted Berenson to discuss the new policy. In December 2020, Twitter announced a new policy with respect to COVID-19 vaccine misinformation, stating that it would start to “remove Tweets which advance harmful or misleading narratives about COVID-19 vaccinations.” Berenson contacted Borrman, “looking for assurances that Twitter would continue to allow his reporting on COVID-19 vaccines.” Borrman allegedly responded that the “points [Berenson was] raising should not be an issue at all,” and that Berenson should reach out if he “r[an] into any issues.”

On March 1, 2021, Twitter announced a “five-strike policy” to combat COVID-19 misinformation. Accounts that received strikes were subject to increasing levels of discipline: the first strike resulted in a warning, the second and third strikes each in a 12-hour account lock, the fourth strike in a 7-day account lock, and the fifth or successive strike in permanent suspension. The policy provided that, if a user “believe[s] that [their] account was locked or suspended in error, [the user] can submit an appeal.”

The next day, Berenson spoke with Borrman, who allegedly reported that “[Berenson’s] name has never come up in the discussions around these policies,” and that Borrman would “try to ensure [that Berenson would be] given a heads up before an action is taken, but [that Borrman was] not always made aware of them before they’re executed.”…

Berenson received strikes from Twitter in March, July, and August 2021. His Twitter account was permanently suspended with the fifth strike on August 28, 2021.

Berenson “alleges that former President Joseph R. Biden, as well as other individuals in the Biden Administration, conspired with executives at Pfizer, Inc. to pressure Twitter to suspend Berenson’s Twitter account, because of his views with respect to the COVID-19 vaccines.” He sued various US government officials for roles in the alleged censorship. In 2025, the district court dismissed several of the defendants. The Second Circuit, in a memo opinion, affirms that ruling.

Section 1985(3)

Berenson asserts that the relevant class here is a “class of Americans who had chosen not to receive a COVID-19 vaccine, a class of which [ ] Berenson is apart [sic].” The district court correctly held that Berenson’s proposed class does not constitute a class for Section 1985(3) purposes. Instead, this is precisely the kind of class that the Supreme Court cautioned against in Bray—a class composed of individuals who share a desire to engage in conduct, i.e., to forgo COVID-19 vaccination, that the defendants allegedly disfavor. To the extent Berenson suggests that the class falls within the ambit of Section 1985 because it “includes a disproportionate number of African-Americans, political conservatives, and evangelical Christians,” we are unpersuaded….

the FAC is replete with allegations that Berenson, and not a general class of unvaccinated Americans, was specifically targeted….Berenson’s Section 1985 claim must be dismissed because he failed to plausibly allege “that the defendants acted with class-based, invidiously discriminatory animus.”

Tortious Interference

Twitter’s five-strike policy and Borrman’s alleged remarks, whether considered separately or together, are not “wholly incompatible” with the Terms of Service. The relevant provision of the Terms of Service is located in the section entitled “Ending These Terms,” and provides the means by which a user may terminate the agreement…the provision makes clear that suspension or termination of an account is not limited to violations of that policy….

[Borrman’s] remarks suggest at most that Borrman would attempt to notify Berenson of action taken against him—not that no action would be taken against Berenson or that Berenson would necessarily receive advance notice of any action.

In 2022, Berenson’s deplatforming claim against Twitter partly survived a motion to dismiss. My blog post on that ruling. That ruling became a bit of a cause celebre in MAGA circles as proof that (1) Berenson was censored, and (2) Twitter could be held liabile. The Second Circuit rejects that ruling:

Berenson relies heavily on Berenson v. Twitter, Inc., No. C 21-09818 (WHA), 2022 WL 1289049 (N.D. Cal. Apr. 29, 2022), a decision in a case Berenson initiated against Twitter in December 2021. There, the district court granted in part and denied in part Twitter’s motion to dismiss, holding that the five-strike policy and Borrman’s “specific and direct assurances to [Berenson] regarding his posts pursuant to that policy” “amount[ed] to a modification of the [Terms of Service]” and that Berenson had plausibly alleged that “Twitter’s conduct … modified its contract with [him] and then breached that contract by failing to abide by its own five-strike policy and its specific commitments set forth through [Borrman].” We find that analysis unpersuasive

It’s a reminder that plaintiffs have virtually no chance of successfully suing Internet services for their account termination/content removal decisions. Even one of the few preliminary “wins” by plaintiffs is “unpersuasive” when reviewed by an (unrelated) appellate court.

The litigation over Biden-era COVID-related “censorship” feels quaint in light of the ongoing, relentless, and far more egregious censorship taking place daily in the Trump 2.0 administration. If anyone still wants to make censorship their cause celebre, it would make sense to start with the censorship taking place RIGHT NOW.

Case Citation: Berenson v. Gottlieb, 2026 WL 3135334 (2d Cir. Oct. 20, 2026)

Selected Jawboning Posts

• The Federal Government Used Jawboning to Censor ICE Transparency Initiatives–Rosado v. Bondi
• COVID Jawboning Lawsuit Dismissed (For Now)–Dressen v. Flaherty
• Section 230 (Still) Applies to Contract Breach Claim–NJCCC v. McAleer
• Facebook Defeats Armslist’s Account Termination Lawsuit–Armslist v. Facebook
• Robert F. Kennedy Jr. Is Breaking Internet Law Faster Than I Can Blog It
• Plaintiffs Lack Standing to Sue Over Government Jawboning When Their Evidence is Based on Vibes–Murthy v. Missouri
• Jawboning Defendants Are 6-for-6 in the Ninth Circuit–Hart v. Facebook
• Another Jawboning Case Fails in the 9th Circuit (But a TAFS Judge Doesn’t Like the Biden Administration)–Rogalinksi v. Meta
• Sixth Circuit Dismisses Online Jawboning Case–Changizi v. DHHS
• “Twitter Files” Don’t Help Revive Jawboning Case–Hart v. Facebook
• Another Jawboning Case Fails in the Ninth Circuit–Kennedy v. Warren
• Government Submissions to a Trusted Flagger Program Aren’t Unconstitutional Jawboning–O’Handley v. Weber
• Ninth Circuit Easily Rejects Another Jawboning Case–Huber v. Biden
• Ninth Circuit Easily Rejects Jawboning Claims Against YouTube–Doe v. Google
• Facebook Defeats Jawboning Lawsuit Over COVID Misinformation Removal–Rogalinski v. Meta
• COVID Skeptics’ Anti-Jawboning Lawsuit Fails–Changizi v. Department of HHS
• Facebook & Twitter Defeat Lawsuit Over Account Terminations of COVID/Mask Skeptic–Hart v. Facebook
• Twitter Defeats Trump’s Deplatforming Lawsuit–Trump v. Twitter
• Section 230 Survives Yet Another Constitutional Challenge–Huber v. Biden
• Another Anti-Vaxxer Jawboning Lawsuit Fails–ICAN v. YouTube
• The First Amendment Protects Twitter’s Fact-Checking and Account Suspension Decisions–O’Handley v. Padilla
• One More Time: Facebook Isn’t a State Actor–Atkinson v. Facebook
• Government Jawboning Doesn’t Turn Internet Services into State Actors–Doe v. Google
• Facebook Defeats Lawsuit By Publishers of Vaccine (Mis?)information–Children’s Health Defense v. Facebook
• Another Must-Carry Lawsuit Against YouTube Fails–Daniels v Alphabet
• Congressional Jawboning of Internet Services Isn’t Actionable–AAPS v. Schiff
• Facebook Isn’t a Constructive Public Trust–Cameron Atkinson v. Facebook
• Section 230 Ends Demonetized YouTuber’s Lawsuit–Lewis v. Google

The post Alex Berenson’s Deplatforming Lawsuit Fails in the Second Circuit–Berenson v. Gottlieb appeared first on Technology & Marketing Law Blog.

As part of the arrest and investigation, the police seized Stathas’ car, cellphone, wallet, and other electronics. Per 18 U.S.C. § 2428(a)(1), the judge should have ordered (but did not) a forfeiture of “any property, real or personal, that was used or intended to be used to commit or to facilitate the commission of such violation.” The forfeiture should include the cellphone (Stathas used it to communicate extensively with the victim), but does that include the data on the cellphone, which arguably is neither real property nor personal property?

Produced by ChatGPT October 2026

After Stathas’ sentencing, the police agreed to return his car, wallet, and other electronics. If the police had gotten a forfeiture order, they wouldn’t have to return his cellphone at all, but instead they agreed to return the phone only after wiping it “because it contained obscene, sexually explicit conversations between Stathas and the victim, as well as the victim’s identifying information.” “Stathas responded that although he did not object to the government deleting his conversations with the victim, other data on the phone should be preserved because it was meaningful to him personally or relevant to a possible civil lawsuit against the West Bend Police Department.”

The Seventh Circuit says no:

the government’s retention and destruction of the data on Stathas’s cellphone is reasonable under the circumstances. The district court’s finding that the phone was rife with “numerous sexually explicit messages and images” sent to the victim as well as “significant personally identifying information about her” is not clear error. The record reveals that these conversations occurred over multiple apps on the phone and that Stathas also received explicit photos of the minor. The court did not clearly err by crediting the government’s assertion that “no procedure short of digitally wiping” the phone would eliminate all criminal or harmful material. Given the importance of the government’s interest in ensuring none of this material remains on Stathas’s phone, the district court did not abuse its discretion in concluding that the government could delete the phone’s data before returning it.

I haven’t seen a lot of discussion about wiping cellphone as a criminal remedy. In a case like this, it makes sense that the data associated with the crime should not go back into the criminal’s hand. At the same time, a cellphone wipe deletes a lot of data that may have nothing to do with the crime. Depending on the nature of that data and the availability of backups, a cellphone wipe could profoundly affect a person’s life. For example, if the cellphone had the data necessary to establish Stathas’ legal claim against the police, the cellphone wipe might extinguish his legal claim entirely.

The severity of a cellphone wipe brought to mind the Supreme Court’s discussion about the importance of cellphones (in a slightly different legal context) in Riley v. California, 573 U.S. 373 (2014):

The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity….

The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.

The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary. But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate….

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.

In 1926, Learned Hand observed that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

Case Citation: U.S. v. Stathas, 2026 WL 3061816 (7th Cir. October 13, 2026)

The post Should Police Wipe a Criminal’s Cellphone Before Returning It?–U.S. v. Stathas appeared first on Technology & Marketing Law Blog.

Created by ChatGPT May 2026

The issue is: if a website imposes a government-compelled age authentication wall, what percentage of users will stop at the authentication wall, either because the users turn around or fail to navigate the process? I call that percentage the “balk” rate. For background on prior studies and why balk rates can vary widely, read my prior coverage first.

I’m now reporting on a study by All About Cookies entitled “72% of Americans Don’t Trust the Companies Verifying Their Age Online.” The writeup qualifies the headline claim: “72% of Americans express low levels of trust in the companies and services handling age verification data, including 40% who do not trust them at all.” The other 32% say they “slightly” trust the authenticators.

This chart shows what happened when users were confronted with an age authentication wall (users could select multiple options):

I disregard the first and third options because they are self-reporting, and that isn’t an “authentication” at all. Instead, focus on the bottom three options, all of which are rejections of the age authentication wall (go somewhere else, abandon the effort, or bypass the wall using VPNs). The first two are balk rates; the third also rejects the age authentication wall.

One way of reading this data is that only 31% of consumers were willing to age-authenticate; all other consumers chose some other non-authentication option if they could. Because users could pick multiple choices, we can’t combine the three rejection options (which adds up to 32%) and compare it to the 31% who said they authenticate. But even if we take the most conservative reading of this data and say that there’s at least an 11% balk rate, that’s still a lot of disruption of existing user activity.

The report summarizes this chart with this confusing statement: “Age verification laws don’t get more people to verify: 31% complete verification in states with and without laws. Instead, people in law states are 7x more likely to give up entirely and 4x more likely to use a VPN.” The survey didn’t provide the supporting data to explain the 7x assessment, but I interpret it as a warning that the quantity of consumer balks will soar as more states’ age authentication mandates come into effect.

The next chart asks how comfortable users would be sharing the specific items of data to get through an age authentication wall:

As you can see, the “least” troubling option is an automatically scanned selfie, which more than 2/3 said they would be uncomfortable with sharing. Credit card authentication–which used to be the benchmark for age authentication in the 1990s and is now considered no longer credible–made nearly 9 of 10 consumers uncomfortable.

Over time, these discomfort rates might organically decline as age authentication mandates become ubiquitous, which will cause consumers become to desensitized to the omnipresent privacy invasions.

Zero-knowledge proofs might also change how consumers feel about sharing their government-issued IDs because the ID contents would not be shared. However, to reach that point, consumers first will have to overcome the many troubling implications of installing a government-issued digital ID on their device. Personally, I’m a hard “no” on digital IDs.

We can’t directly infer a balk rate from this data, but it’s not good. When users are uncomfortable with the data disclosure, they weigh the costs/benefits of proceeding. If they can’t easily assess the benefits–which will often be the case with new services that the consumer doesn’t know well–then the discomfort is likely to increase balk rates. As I mention in my Segregate-and-Suppress paper, the resulting changes in consumer behavior are likely to hinder new market entrants and overall market dynamism.

Overall, I don’t see how anyone, especially government regulators, can look at the emerging balk rate data and think that the Internet is going to be just fine when online age authentication mandates become ubiquitous.

Blog Posts on Segregate-and-Suppress Obligations

• More Data on Online Age Authentication Balk Rates
• Fifth Circuit Keeps Doing Fifth Circuit Things –SEAT v. Paxton
• How Often Do Consumers Balk at Doing Online Age Authentication?
• Court Enjoins Another Arkansas Segregate-and-Suppress Law–NetChoice v. Griffin
• Too Many Courts Are Letting States Take Wrecking Balls to the Internet (Roundup)
• Texas Judge Enjoins App Store Authentication Law–CCIA and SEAT v. Paxton
• Courts Enjoin Internet Censorship Laws in Louisana and Arkansas
• Challenge to Maryland’s “Kid Code” Survives Motion to Dismiss–NetChoice v. Brown
• My Testimony Against Mandatory Online Age Authentication
• Read the Published Version of My Paper Against Mandatory Online Age Authentication
• Prof. Goldman’s Statement on the Supreme Court’s Demolition of the Internet in Free Speech Coalition v. Paxton
• Court Permanently Enjoins Ohio’s Segregate-and-Suppress/Parental Consent Law–NetChoice v. Yost
• Arkansas’ Social Media Safety Act Permanently Enjoined—NetChoice v. Griffin
• Why I Emphatically Oppose Online Age Verification Mandates
• California’s Age-Appropriate Design Code (AADC) Is Completely Unconstitutional (Multiple Ways)–NetChoice v. Bonta
• Another Conflict Between Privacy Laws and Age Authentication–Murphy v. Confirm ID
• Recapping Three Social Media Addiction Opinions from Fall (Catch-Up Post)
• District Court Blocks More of Texas’ Segregate-and-Suppress Law (HB 18)–SEAT v. Paxton
• Comments on the Free Speech Coalition v. Paxton SCOTUS Oral Arguments on Mandatory Online Age “Verification”
• California’s “Protecting Our Kids from Social Media Addiction Act” Is Partially Unconstitutional…But Other Parts Are Green-Lighted–NetChoice v. Bonta
• Section 230 Defeats Underage User’s Lawsuit Against Grindr–Doll v. Pelphrey
• Five Decisions Illustrate How Section 230 Is Fading Fast
• Internet Law Professors Submit a SCOTUS Amicus Brief on Online Age Authentication–Free Speech Coalition v. Paxton
• Court Enjoins the Utah “Minor Protection in Social Media Act”–NetChoice v. Reyes
• Another Texas Online Censorship Law Partially Enjoined–CCIA v. Paxton
• When It Comes to Section 230, the Ninth Circuit is a Chaos Agent–Estate of Bride v. YOLO
• Court Dismisses School Districts’ Lawsuits Over Social Media “Addiction”–In re Social Media Cases
• Ninth Circuit Strikes Down Key Part of the CA Age-Appropriate Design Code (the Rest is TBD)–NetChoice v. Bonta
• Mississippi’s Age-Authentication Law Declared Unconstitutional–NetChoice v. Fitch
• Indiana’s Anti-Online Porn Law “Is Not Close” to Constitutional–Free Speech Coalition v. Rokita
• Fifth Circuit Once Again Disregards Supreme Court Precedent and Mangles Section 230–Free Speech Coalition v. Paxton
• Snapchat Isn’t Liable for Offline Sexual Abuse–VV v. Meta
• 2023 Quick Links: Censorship
• Court Enjoins Ohio’s Law Requiring Parental Approval for Children’s Social Media Accounts–NetChoice v. Yost
• Many Fifth Circuit Judges Hope to Eviscerate Section 230–Doe v. Snap
• Louisiana’s Age Authentication Mandate Avoids Constitutional Scrutiny Using a Legislative Drafting Trick–Free Speech Coalition v. LeBlanc
• Section 230 Once Again Applies to Claims Over Offline Sexual Abuse–Doe v. Grindr
• Comments on the Ruling Declaring California’s Age-Appropriate Design Code (AADC) Unconstitutional–NetChoice v. Bonta
• Two Separate Courts Reiterate That Online Age Authentication Mandates Are Unconstitutional
• Minnesota’s Attempt to Copy California’s Constitutionally Defective Age Appropriate Design Code is an Utter Fail (Guest Blog Post)
• Do Mandatory Age Verification Laws Conflict with Biometric Privacy Laws?–Kuklinski v. Binance
• Why I Think California’s Age-Appropriate Design Code (AADC) Is Unconstitutional
• An Interview Regarding AB 2273/the California Age-Appropriate Design Code (AADC)
• Op-Ed: The Plan to Blow Up the Internet, Ostensibly to Protect Kids Online (Regarding AB 2273)
• A Short Explainer of Why California’s Social Media Addiction Bill (AB 2408) Is Terrible
• A Short Explainer of How California’s Age-Appropriate Design Code Bill (AB2273) Would Break the Internet
• Is the California Legislature Addicted to Performative Election-Year Stunts That Threaten the Internet? (Comments on AB2408)
• Omegle Denied Section 230 Dismissal–AM v. Omegle
• Snapchat Isn’t Liable for a Teacher’s Sexual Predation–Doe v. Snap
• Will California Eliminate Anonymous Web Browsing? (Comments on CA AB 2273, The Age-Appropriate Design Code Act)
• Minnesota Wants to Ban Under-18s From User-Generated Content Services
• California’s Latest Effort To Keep Some Ads From Reaching Kids Is Misguided And Unconstitutional (Forbes Cross-Post)
• Backpage Gets Important 47 USC 230 Win Against Washington Law Trying to Combat Online Prostitution Ads (Forbes Cross-Post & More)
• Backpage Gets TRO Against Washington Law Attempting to Bypass Section 230–Backpage v. McKenna
• MySpace Wins Another 47 USC 230 Case Over Sexual Assaults of Users–Doe II v. MySpace
• MySpace Gets 230 Win in Fifth Circuit–Doe v. MySpace
• Website Isn’t Liable When Users Lie About Their Ages–Doe v. SexSearch

The post Some New Data on Age Authentication Balk Rates appeared first on Technology & Marketing Law Blog.

* * *

[Note: as discussed below, I previously missed a Florida case previews the developments in this post. It’s still worth talking now because Snap’s choices are wild.]

Kansas state AG Kobach sued Snap for “deceptive and unconscionable practices” in Kansas state court. Like many other plaintiffs, Kobach argues that: Snap publicly lies to avoid getting slapped with mature ratings in app stores, and Snap designed itself to be addictive. Snap removed the Kansas case from state court to federal court, but Kobach sought to remand the case back to state court. This ruling grants Kobach’s remand request.

A case can remain in federal court if it involves “any person acting under an officer of the United States for or relating to any act under color of such office.” The litigant must show “(1) they acted under the direction of a federal officer, (2) the claim has a connection or association with government-directed conduct, and (3) they have a colorable federal defense to the claim or claims.”

To keep the case in federal court, Snap claims that it acted under the direction of a federal officer based on its work for DHS and FDA. For example, “Snap argues that it was helping DHS and the FDA discharge statutorily mandated missions.” Say what now?

First, Snap might not want to be highlighting its work for DHS or the FDA during the Trump era. I imagine many Snap users would not appreciate Snap taking money to become a propaganda proxy for the Trump administration.

Second, and more importantly, Snap has provided fodder to future plaintiffs who want to argue that Snap has become a state actor when it makes content moderation decisions. (There are a variety of ways plaintiffs can state those claims, typically under the umbrella of jawboning). I cannot see any scenario where Snap can financially or logistically handle the legal status of being a state actor. And it’s exposing itself to this potentially existential risk for…the benefit of remanding cases from state to federal court?

Snap could try to mitigate these harms in two ways. First, it can argue that any direction it took from the government was limited to specified topics and doesn’t implicate its broader content moderation function. Second, it could try to distinguish between being a jawboned entity for Constitutional purposes and the specific statutory elements of the removal statute, an argument strengthened by the fact that Snap’s request failed here (but see the Florida counterpart).

Despite that, Snap has provided plaintiffs with easy cut-and-paste material to support those plaintiffs’ claims that Snap “censored” them on behalf of the US government. Perhaps those claims will survive to summary judgment or even a trial where they might have failed on a motion to dismiss. Thus, as the cost of trying to obtain a smallish procedural win (i.e., to reposition what courts hears the cases), Snap has planted the seeds for long-term, expensive, and high-risk legal entanglements.

For that reason, as I read this case, my brain kept thinking of this clip:

* * *

If you want details about Snap’s work for DHS, Snap worked on the following projects:

• “Know2Protect, an educational campaign aiming to prevent “online sexual exploitation and abuse” and promote online safety”
• “Pledge2Protect, a campaign encouraging people “to take action and educate themselves concerning online child exploitation and preventative measures.””
• “Snap has helped DHS build “custom ‘lenses’”—a Snapchat feature that “allow[s] users to add interactive animations to photos and videos”—for its two campaigns”
• “DHS controls “where and how” its advertisements appear in Snapchat. And Snap obeys DHS’s request by targeting its campaigns to teenage users.”
• “Blue Campaign [] aims to prevent human trafficking and educate the public about human trafficking. DHS advertised Blue Campaign in Snapchat and dictated the placement of the ads.”

Some details about Snap’s work for FDA:

“The Real Cost” and “Next Legends” [] try to educate teenagers about the risks of nicotine and tobacco use. Snap helped the FDA build custom lenses featuring interactive animations that give facts about cigarette and vape usage….the FDA advertises in Snapchat to promote its campaigns. It “dictates” “where and how the advertisements” appear in Snapchat. Snap, per the FDA’s request, targets these advertisements to teenage users.

Much of this sounds like standard publisher-advertiser ad targeting interactions, i.e., the advertiser-customer directs the publisher-vendor to get the best ROI from the ads; with the tiny twist that this advertiser is the federal government. However, I couldn’t tell from this discussion how deeply Snap’s DHS and FDA work might have reached into Snap’s general content moderation activities.

The court says none of Snap’s evidence satisfies the statutory standards for being directed by a federal officer. The court summarizes:

No doubt, Snap performed some services for federal officers. Some of those services—like advertising on Snapchat—reflect no more than a standard arms-length commercial transaction. Other services, like lens production and custom research, didn’t involve a federal officer’s “strict guidance or control” over Snap. Snap thus has failed to identify any conduct that qualifies it as acting under a federal officer.

That conclusion ought to save Snap from the risks it has created for itself. However, Snap has successfully advanced this federal officer direction remand/removal argument at least once before in a case I previously missed. Off. of Att’y Gen. v. Snap Inc., 2025 WL 4035005 (N.D. Fla. Aug. 13, 2025), appeal docketed, No. 25-12814 (11th Cir. Aug. 18, 2025).

The Kansas court acknowledges the Florida lower court opinion:

The court respectfully disagrees with that case’s analysis, which suggests that Snap needn’t show a close or extensive relationship with the federal government to satisfy the acting-under prong. That conclusion isn’t tenable under Tenth Circuit law, which requires “strict guidance or control” and “close supervision of the private entity by the government[.]”

The fact that the Florida case is headed to the 11th Circuit makes that a potentially risky case for Snap and the industry generally. Imprecise words or broad statements from the appellate court could really put Snap (and others) into a much deeper legal hole. There’s also the chance Snap will appeal the Kansas ruling, giving a different appellate court the chance to do something wacky and problematic.

Case Citation: State v. Snap, Inc., 2026 WL 2525593 (D. Kansas Aug. 27, 2026)

The post Snap Wants to be a State Actor??–Kansas v. Snap appeared first on Technology & Marketing Law Blog.

Created by ChatGPT Sept. 2026

Meta’s settlement with the state attorneys general has been touted as industry-redefining. Indeed, Meta desperately hopes it will be. Although Meta was the only industry player to negotiate its terms, the settlement agreement is structured to broadly reshape the social media industry. In addition to Meta’s guaranteed settlement payments of $12 billion, Meta will pay the state AGs a total of $5 billion in additional bonuses — if the state AGs restrict minors’ usage of Meta’s key competitors (and make comparable settlement payments).

The settlement’s quid-pro-quo effectively places a bounty on the heads of Meta’s competitors — and deputizes the state AGs as Meta’s bounty-hunters. Meta wants the government to hit Meta’s rivals. If state AGs deliver the results Meta wants, Meta pays them off. The quid-pro-quo is not subtle. It’s out in the open for everyone to see, but that doesn’t make it any less corrupt or corrosive.

It’s easy to understand why Meta dangled the bounty in front of the state AGs. For years, Meta has urged governments to increase their regulation of social media—but only so long as any new regulation doesn’t disadvantage Meta more than its rivals. By unilaterally entering into the settlement agreement, Meta has exposed itself to a risk that it ends up as the only major industry player hindered by the agreement’s restrictions.

This would put Meta in a precarious market position, especially given the settlement agreement’s time limits on use and the fact that Meta’s competitors are just a click away for consumers. The economic benefits of having its competitors equally restricted are surely worth far more than $5 billion to Meta. That’s why Meta will happily share a piece of its financial upside with the state AGs if they deliver their end of the bargain.

While it’s clearly in Meta’s interests to pay off the state AGs to impose the settlement terms on Meta’s rivals, why are state AGs so eager to become Meta’s bounty-hunters?

To be fair, the state AGs have plenty of motivation to prosecute Meta’s social media rivals without any additional bounties from Meta. Indeed, prior to the settlement, several state AGs had already initiated enforcement actions against some of Meta’s rivals. The state AGs might view the $5 billion bounty as a financial windfall for doing work they were willing to do for free.

Unfortunately, any windfall from Meta’s bounty arrangement comes at a high cost to the state AGs and their constituents.

First, the quid-pro-quo taints all further social media-related state AG enforcement efforts against Meta’s rivals. Going forward, judges, juries and Meta’s rivals will justifiably wonder: Are the state AGs bringing the enforcement action because they genuinely believe their constituents are being harmed, or because they hope to cash in Meta’s bounty?

Second, the state AGs have shown how justice is for sale in their offices. The state AGs will do the anticompetitive work of controlling the marketplace activities of a company’s rival — if enough money is on the table. Putting a price on justice this way degrades the rule of law.

In promoting the settlement, the state AGs have proudly claimed that they are working to protect the children in their states. Instead, Meta’s bounty demonstrates that the state AGs are actually working for Meta. This is a good reason for the courts to think carefully about whether the settlement should be approved.

Our society needs to have difficult and high-stakes conversations about how we can improve children’s welfare online. By selling out the integrity of their enforcement decisions, the state AGs have discredited themselves as contributors to those conversations.

Eric Goldman is a law professor and associate dean for research at Santa Clara University School of Law. He has been teaching and researching internet law for over 30 years.

The post Op-Ed: Meta’s $5 Billion Deal with the State AGs to Take Down its Rivals appeared first on Technology & Marketing Law Blog.

This is a defamation case between a professor and a student in the Emory School of Medicine. It is one of the countless lawsuits related to the Gaza war, Palestinian rights, and Zionism/anti-Zionism.

In this case, the student publicly and repreatedly criticized the professor for serving in the Israel Defense Forces (IDF), and in response the school suspended her. Her suspension became a cause celebre. Separately, the professor sued her and several outlets that amplified her remarks. It is a major proxy battle over its highly charged topics; about two dozen lawyers are litigating some aspect of this case.

This post focuses on one corner of that larger litigation endeavor. Two defendants, CAIR Georgia and CAIR Foundation, used the Instagram Collabs feature to jointly post allegedly defamatory content involving the student’s story. Instagram describes the Collabs feature:

Instagram Collabs allow you to co-author posts with other accounts, sharing the post with both sets of followers and listing both accounts as authors. To create one, tap Tag people and then Invite collaborator before publishing your post; the invited user must then accept the invite via their messages to be added.

CAIR Foundation claimed that Section 230 protected it from liability for the collaborated post with CAIR Georgia. The court disagrees:

it is apparent from the face of the Second Amended Complaint that CAIR Foundation served as a co-author of the IG Post and therefore cannot be considered a benign user under the CDA.

(I’m not sure the “benign user” term improves the Section 230 jurisprudence, but it might make a good band name).

The court describes Section 230’s limits:

It is true that CDA immunity generally applies to reposting content, as many courts have concluded that private individuals reposting are “users.” See, e.g., Life Mastery Network LLC v. Haygarth, 2026 WL 1622887, at *15-16 (D. Haw. May 22, 2026) (collecting cases). But the CDA does not immunize someone who posts original content, so “it makes sense that adding comments to something that is re-posted would not trigger CDA immunity.” As the Plaintiff pleads it, CAIR Foundation did not simply reshare the WSB-TV segment, nor was it just a tagged user in CAIR Georgia’s post. Instead, it co-authored and published a post to its own Instagram page. Even assuming, as CAIR Foundation alleges, that it did not contribute to authoring the post, it at minimum accepted the collaboration invitation from CAIR Georgia knowing it would be tagged as a collaborator with the post published on its own Instagram profile. Moreover, the IG Post did not “merely share” the WSB-TV segment, but included additional commentary in the caption, with comments from CAIR Georgia on the post sharing links.

These factual allegations are enough to overcome a Section 230 defense now. The court says “a jury could find that CAIR Foundation was responsible in part for the creation or development of the IG Post, including the added commentary.”

* * *

I don’t use Instagram, so this is my first time encountering the Collabs feature (though I’ve occasionally experimented with analogous functionality on other services). It makes me wonder how extensively the Collabs tool is used. I did find one other case mentioning the Collabs tool: Kennedy v. Prime Hydration, LLC, 2026 WL 2018652 (W.D. Ky. July 13, 2026) (the facts are too complicated to cover here). However, I did a search in Westlaw’s Law Reviews and Journals database and found only one mention of Instagram Collabs in that literature (in the footnotes of a 2025 student note). Given the novelty of the Collabs angle, I think this case breaks some new ground.

At the same time, this is a reimagining of the issues I was trying to cover in my Co-Blogging Law paper from over 20 years ago. The Internet enables new forms of joint or collaborative content creation and dissemination that overlay existing legal doctrines. In that paper, I wrote: “The law inevitably will blindside some of these co-bloggers. Bloggers may find unexpected liability for their co-bloggers’ posts or actions.” Here, the court says that CAIR Foundation may become a co-author of the Instagram post (at least for defamation purposes), even if CAIR Foundation did nothing other than accept the Collabs invitation and allow CAIR Georgia’s content to reach its audience. In that circumstance, Section 230 steps aside for the co-authored components, whether CAIR Foundation expected it or not. If you are considering using a Collabs functionality, be aware of these risks.

Still, I think Section 230 continues to cast a long shadow on the plaintiff’s allegations. Even though the Collabs feature presents the defendants as co-authors, they might still not be liable for each other’s contributions. It’s analogous to how an online publisher can extensively edit a third-party’s work and, per Section 230, still not become liable for the parts the publisher didn’t edit. In other words, the public-facing co-author characterization doesn’t end the inquiry.Thus, regardless of the labeling, the plaintiff will need to show that CAIR Foundation contributed to the creation or development of defamatory content. That kind of factual inquiry sounds like a typical jury question.

Case Citation: Winer v. Mohammad, 2026 WL 2523973 (N.D. Ga. August 26, 2026)

The post Collaborators Using the ‘Instagram Collabs’ Feature May Forego a Section 230 Defense–Winer v. Mohammed appeared first on Technology & Marketing Law Blog.

In response, the firm sued her for defamation and breach of contract. The firm enumerated seven allegedly defamatory statements, including “They are either scam artists or complete crooks” and “They are not tough, they are not effective and they will rob you blind.” The lower court held these statements were nonactionable hyperbole and the author’s opinion. Other claims failed because the firm didn’t show they were false.

With respect to the contract breach, Section 16 of the firm’s fee agreement said the parties “agree not to directly or indirectly disparage each other either electronically or otherwise.” Because of this, Yelp has flagged the firm’s Yelp business page with a “Questionable Legal Threats” warning:

The link goes to the full text of the Superior Court opinion in this case.

As every lawyer knows, suing a client entails substantial risk of blowback, including possibly a malpractice claim and a complaint to the state bar. Here, the law firm gets other unwanted consequences. Sedgwick successfully brought an anti-SLAPP motion to strike, which means the firm will be paying her legal fees.

The appeals court upholds the anti-SLAPP dismissal, saying “we readily agree with the trial court that the Yelp review criticizing the firm’s representation of Sedgwick is protected activity.” The appeals court adds that “calling someone crooked is ‘merely rhetorical and hyperbolic language’ and not defamatory.”

Of particular note is the court’s treatment of the fee agreement’s non-disparagement clause. The law firm equated disparagement with defamation, so the court said the contract breach claim failed when there was no defamation. The appeals court adds:

Section 16 violates Civil Code section 1670.8. That statute provides: “A contract … for the sale … of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller … or its employees or agents, or concerning the goods or services.” By its plain language, it precludes a provision that, like Section 16, purports to require Sedgwick “ ‘not to directly or indirectly disparage’ ” the firm.

We do not share the firm’s concern that this statute “would negate existing law and permit consumers to defame businesses … with impunity.” The statute cannot be reasonably read to immunize defamation. In our context, the statute does not prevent the firm from suing for defamation, if the firm could prove defamation sufficiently to survive an anti-SLAPP motion. The statute merely prevents the firm from including Section 16 in its fee agreement—or thereafter enforcing it.

I haven’t exhaustively researched the issue, but I couldn’t think of a prior court finding a 1670.8 violation. It’s 2026, and I can’t believe anyone–especially a law firm–still doesn’t know that contractual efforts to restrict consumer reviews are no bueno.

I’ve complained about the spate of bogus 1670.8 “drive-by” litigation that is clogging our courts, but here is a real-life bona fide example of an actual genuine 1670.8 violation. Review suppression like this is what the drive-by lawyers should be enforcing, not their current tendentious and tortured reading of TOSes.

The argument that the law firm needs a contractual anti-disparagement clause to prevent defamation is specious. If a client posts a defamatory review, defamation law applies–no contract overlay needed. I discuss that issue more in this post.

It would have been more interesting if the firm had claimed that the contract anti-disparagement clause applied even if there wasn’t any defamation. But 1670.8 would kick in, mooting that claim as unenforceable.

Case Citation: LS Carlson Law PC v. Sedgwick, 2026 WL 2410113 (Cal. App. Ct. August 17, 2026)

BONUS: Greenwich Building Company v. Hoots, 2026 WL 2408839 (N.Y. Supreme Ct. August 11, 2026). A real estate company sued a property buyer for negative reviews on Google and Houzz. The court finds the lawsuit was covered by New York’s anti-SLAPP laws. The court says “online review forums such as Google and Houzz have consistently been held to be public forums under New York’s anti-SLAPP law…The statements are of interest to members of the community who may consider buying or renting an apartment at 120 Java Street.”

The court then says the plaintiff showed a substantial basis for its defamation claim because there is some confusion about the identity of parties (the buyer’s complaints may relate to a different, though possibly, related company).

And yet, the plaintiff didn’t adequately show the buyer had actual malice: “Defendant left his reviews on plaintiff’s Google and Houzz pages after diligent pedestrian online research….defendant’s statements specifically on those online review pages appear to have been the result of an honest mistake and that defendant left his reviews on plaintiff’s pages after a good faith attempt to find the correct pages to leave such reviews….This court too chooses to err on the side of non-actionability in this case so as to promote the public’s right to free speech.”

As a result, the case is dismissed, and the defense will get its attorneys’ fees.

Selected Blog Posts Regarding 1670.8

• Another Court Shuts the Door on “Yelp Law” Drive-By Lawsuits–Arterberry v. Peet’s
• Appeals Court Shuts Down Bogus Private Enforcements of the ‘Yelp Law’–Moss v. GoDaddy
• Catching Up on the Bogus “Yelp Law” Litigation Campaign–Tao v. Uniqlo
• Amazon Must Defend “Yelp Law” Claim–Ramos v. Amazon
• Courts Are Rejecting Attempts to Weaponize Laws That Protect Consumer Reviews
• Businesses Cannot Contractually Ban “Abusive” Consumer Reviews
• California Tells Businesses: Stop Trying To Ban Consumer Reviews (Forbes Cross-Post)

The post Lawyer’s Fee Agreement Gagging Client Reviews Is Illegal–LS Carlson Law v. Sedgwick appeared first on Technology & Marketing Law Blog.

Last month, while sitting at Amsterdam’s Schiphol Airport, a passenger typed www.annefrankmanuscripten.org on her laptop to look up the website at issue in the latest judgment by the Court of Justice of the European Union (CJEU) on geoblocking—the Anne Frank Fonds judgment. The retrieved webpage notified her that “due to copyright considerations,” the content, a scholarly edition of Anne Frank manuscripts, was not available to users connecting from the Netherlands.

Using a VPN service, she connected through a server in Belgium. This time the content webpage appeared, asking her to confirm that she was located in one of the listed “public domain countries.” The page warned her that if she was not located in one of those countries, she was “circumventing protection measures” and possibly “infringing copyrights.”

Had she misrepresented her location and confirmed that she was connecting from Belgium, presumably she could have accessed the content, even though she was in the Netherlands, which is not one of the public domain countries of the publication. The content is still protected by copyright in the Netherlands, where the provider of the scholarly edition has no license to make the content available to the public.

The CJEU judgment in Anne Frank Fonds does not address the liability of the cyber-traveling passenger. Instead, it concerns the liability of other actors in the story—the providers of the content and, in the abstract, a VPN provider.

Given the trajectory of prior CJEU judgments that have discussed geoblocking, and the opinion of the Advocate General in this case, the CJEU’s holdings in Anne Frank Fonds are not surprising. Under EU law, a content provider is not liable for copyright infringement by communicating a work to the public in a country where the work is still protected by copyright and for which the provider has no license, if the provider uses an effective–meaning “state of the art”–geoblocking measure. In such a case, the provider is not communicating to the public in the geoblocked country, even if Internet users can circumvent the geoblocking measure with a VPN or similar service. If the geoblocking measure is not effective and therefore a copyright-infringing communication to the public does take place in the country where the work is still protected by copyright, that communication is attributable to the provider of the content and not to the provider of the VPN or similar service.

Several aspects of the Anne Frank Fonds judgment deserve thorough analysis. At the global level, the judgment might raise concerns that it signals the end of a free and open Internet, legitimizes the balkanization of the Internet, and marks a new era of territorialization of the Internet. But none of these trends are new or surprising. In fact, some commentators might argue the opposite. By clarifying how actors on the Internet may lawfully provide a work to users only in countries where the work is in the public domain or for which the actors hold a license, the judgment advances legal certainty for actors who seek to operate lawfully in cyberspace, thus ensuring that more content becomes available online in general.

Clarity about the ability of actors to geographically limit their conduct online might be an argument against the balkanization of the Internet. If access to content can be effectively regulated by content providers, no government intervention should be necessary to wall off the Internet in individual countries. Even the territorialization of the Internet is not new; the Internet has been subject to gradually increasing territorialization from its origins, and the end of the “Wild West era” of the Internet was inevitable.

Any comprehensive analysis of Anne Frank Fonds should be subject to further debate, but two aspects can be highlighted for now: the establishment of the knowledge standard, and the assessment of the effectiveness of geoblocking measures. Both of these aspects will be crucial for the future of the Internet under the legal regime that the judgment has created.

According to the CJEU, the “obligation to adopt effective technological measures to restrict access” to copyrighted content online falls on “any person who knows or ought reasonably to have known” that a work is protected by copyright in some EU member states, even though the work is in the public domain in other member states (par. 42). In the Anne Frank Fonds case, this knowledge standard presents no issue. The defendants clearly knew that the work was still protected by copyright in the Netherlands, as was confirmed by their deployment of geoblocking measures to prevent access from the Netherlands. But in many other cases, the reasonableness of having knowledge about foreign copyright protection might be debated. Will the expectation of knowledge be the same for corporate content providers, individual influencers, and occasional social media users? Imposition of an unreasonably high standard would translate into uneconomic costs that would deter speech, or at least some speech, on the Internet.

Cost considerations might also affect the standard of legal effectiveness of geoblocking measures. While some costs of doing business on the Internet are reasonable, a requirement that would result in unreasonable costs would negatively affect speech on the Internet. Geoblocking tools are not all created equal; their effectiveness varies. If the law is to rely on geoblocking, minimal technical standards must be set to identify geoblocking tools that meet any legal minimum. In the Anne Frank Fonds judgment, the CJEU confirmed, very sensibly, that a possibility of circumvention does not automatically render geoblocking measures ineffective for legal purposes (par. 51). However, the CJEU left it to the national court to decide whether the deployed measure was effective (par. 48).

The CJEU defined “a geo-blocking measure” as “a process that is aimed at enabling or preventing access to the work published on the website depending on the geographical location of the user in the light of the Internet Protocol address (‘IP address’) which he or she uses to connect to the website” (par. 44). We can only assume, and also hope, that by prefacing the court’s definition with the phrase “[i]n the present case,” the CJEU intended the wording not to be the legal definition of geoblocking measures, because newer geoblocking tools no longer rely solely on IP addresses. If the geoblocking measure deployed by the defendants in Anne Frank Fonds relied solely on IP addresses, the question whether the measure was “state of the art” might be warranted (par. 49).

The post CJEU Judgment on Geoblocking & Standards for Knowledge of Foreign Copyright Laws and Geoblocking Measures (Guest Blog Post) appeared first on Technology & Marketing Law Blog.