These days, Big Tech is Big News. While federal lawmakers have recently turned their attention to tech giants and their market power—and launched a broad antitrust probe to boot—a recent decision out of the D.C. Circuit may offer these companies some respite (for now). In a case that pitted fourteen locksmith companies against three tech giants, the appeals court ruled that the safe harbor protections under Section 230 of the Communications Decency Act (“CDA”) applied to shield the tech giants from suit.
In addition to state law claims, the locksmith company plaintiffs (the “Locksmiths”) brought a false advertising claim under the Lanham Act and two antitrust claims under the Sherman Act against three tech giants (the “Search Engines”). The thrust of the Locksmiths’ complaint is that the Search Engines conspired to inundate search results with listings for fake or scam locksmith companies in an effort to force legitimate locksmith companies to pay additional fees for better search result placement. Specifically, the Locksmiths took issue with the fact that the Search Engines, through the use of algorithms, took data they received from the scam businesses (such as address information) and displayed it pictorially alongside similar data points from legitimate businesses. The Locksmiths also complained that the Search Engines knew these sites were for scam businesses.
The Search Engines argued that they are immune from suit under Section 230 of the CDA. The Section 230 safe harbor provision states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The court’s decision ultimately rested on the data inputs and how the Search Engines used them. Here, the Search Engines used algorithms to collect street addresses from third party locksmith companies and merely “translated” them into another format: map pinpoints. The court held that this mere “translation” did not take the Search Engines beyond the scope of Section 230 immunity. Even when the Search Engines create a map pinpoint from less precise location descriptions from third parties, it is protected under Section 230. As the court explained, the map pinpoints display information with “the maximum precision possible from third-party content of varying precision.” Additionally, it was important that the algorithms “do not distinguish between legitimate and scam locksmiths in the translation process.”
The D.C. Circuit ended its opinion with one caveat: Section 230 immunity “is not limitless.” At oral argument, the Search Engines asserted that they would fall within the safe harbor even if they entirely fabricated locksmith addresses. Not so, the court said, because such an assertion “is plainly inconsistent with the scope of the immunity that Congress has conferred.” Current events suggest that the contours of Section 230 immunity for platform companies may be further considered in the not too distant future.