By Carrie A. Goldberg
[Chris Castle editor’s note: We should all be aware that in addition to the “value gap” of the DMCA safe harbor, Big Tech also has another safe harbor in Section 230 which I call the “values gap.” You have to ask yourself, how do they sleep at night? We are honored to be able to post this article by one of the great lawyers of our time, Carrie Goldberg, author of the new book Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls and victim rights lawyer extraordinaire. Carrie is going after Grindr for putting a product into commerce with a design defect that allows stalkers to use the app to assault users. This argument is similar to the Ford Pinto’s exploding gas tank. This post started as a Twitter thread, and we’re very pleased that Carrie agreed to let us post it as an article.]
For the past 2-1/2 years my firm has been in the fight of our life in the case Herrick vs. Grindr which involved owners and operators of the Grindr gay dating app refusing to assist our client, Matthew Herrick, when mobs of strangers were coming to his home to have sex with him.
Using Grindr’s geolocating and other technology, Herrick’s ex impersonated him and directed over 1200 men to him in person. Sometimes 23 a day. Herrick went to the police and got an order of protection. Nothing Herrick was able to do helped to stop this assault.
And neither did Grindr. No, Grindr said in court they didn’t need to help Matthew because the Communications Decency Act Section 230 protected them from any legal responsibility for harms caused by their app. The district judge agreed. We appealed it to a panel of judges sitting on the Second Circuit Court of Appeals.
The Second Circuit panel also said Grindr bore no responsibility to Matthew and that the earlier judge was right to throw the case out. We sought a rehearing en banc before all the judges on the Second Circuit trying to explain that we were not suing for words or communications from a user (for which Grindr would get Section 230 immunity) but rather, we were suing Grindr because its product was defective.
Why? Because Grindr designed their product without an internal system or other protective functionality to save users and the world at large from people abusing their product to impersonate, stalk, prey—easily foreseeable harms that a reasonable person could have predicted might happen before Grindr was put into commerce.
In August we submitted a cert petition for the Supreme Court of the United States to review the Second Circuit’s ruling and reverse it. We’ll know Oct. 1 if they will. In my practice, I see a lot of people like Matthew whose lives were destroyed because apps and social media companies ignored them. People who are victims of revenge porn, sextortion, harassment, doxxing, horrible content coming up in search engines, all of which could be prevented by eliminating these design defects and putting people over profits.
These Big Tech companies have ZERO incentive to build safety precautions into their products because this 1996 law Section 230 has been interpreted by the courts to shield tech companies from just about any responsibility. It means we as individuals CAN NOT sue them. A bunch of politicians, lobbyists and even some professors will say that Section 230 protects our speech.
That is not true.
What Section 230 does is remove options for us as individuals when lives are destroyed through tech. Our courts are no longer an option for us to get justice. I can’t overstate how extreme it is for there to be companies that are UNTOUCHABLE by our courts.
Our tort system is centuries old and it is the great equalizer enforced by the courts—an entire branch of government and integral to our entire concept of checks and balances. In almost every kind of harm, for a couple hundred bucks a single person can use the tort law and the courts to hold the most powerful person or company responsible if they caused us harm and we can stop them from further hurting us which is Matthew’s case.
The ramifications of Section 230 immunity don’t just impact those harmed. Section 230 harms us all as a society. We are entering an era of greater surveillance, Artificial Intelligence, self-driving cars, facial recognition technology. Companies developing this have ZERO incentive to be thinking about how their products will be abused and exploited by bad actors. Why? First and foremost because there is no pressure on them from the threat of litigation.
So in addition to Matthew’s battle with the courts, my big discovery is that our politicians are now inserting language into our international trade agreements that echos Section 230.
If they succeed and we are injured by some other country’s negligent tech product, app or social media company, our country is immunizing those companies too. Those international companies now can’t be sued by us either.
Look at Article 19.17 of NAFTA 2.0 .
The language, which is even MORE expansive than Section 230 in protecting tech companies was already included in NAFTA.
And we have some politicians working to include it in trade deals with Japan, India, and the EU. This is INSANE.
These politicians are taking away our rights against tech companies in our own country and others. This means they can all be as exploitive of users and privacy and human rights as they want.
Everybody should be scared as hell. Section 230 is NOT about online speech. It is about access to justice. No other industry is immune like this. These companies basically have sovereign immunity. The most powerful, wealthy, omniscient, omnipotent industry in the history of the world has as much or more protections from being sued as a government.
We need to hold our politicians accountable. We need to expose those who are fighting against our individual rights and voting to exclude these companies from judicial systems around the world. Additionally, if our American companies don’t like changes we make to Section 230, they’ll just relocate to a country with whom we have a trade agreement.
Who in congress is THAT owned by Big Tech that they would betray the American people and strip them of all recourse for injuries that occur online?