Snap accused the New Mexico attorney general of making false allegations against the social media platform and misrepresenting its undercover investigation into the Snapchat app in a case about children’s safety and privacy. The platform said Thursday that it filed a motion to dismiss the AG’s lawsuit on Nov. 18. “Instead of working with Snap and New Mexico’s law enforcement officials on these efforts to combat bad actors,” AG Raul Torrez (D) "has chosen to work against them,” the motion said. “The result is a highly charged, headline-grabbing lawsuit founded upon gross misrepresentations of the State’s ‘investigation,’ dubious ‘evidence’ mined from the dark web, screenshots from platforms other than Snapchat, and cherry-picked references to old features that no longer exist.” Torrez filed a suit against Snap on Sept. 4 alleging that the social media app’s design features foster sextortion, sharing of child sexual abuse materials and child sexual exploitation. The New Mexico Department of Justice conducted an undercover investigation into the social media platform, including creating a decoy account of a 14-year-old. The decoy exchanged messages with dangerous accounts, several of which attempted to coerce it into sharing child sexual abuse materials. The investigation found the app’s recommendation algorithm connected Snapchat accounts that capture, circulate and sell child sexual abuse materials, as well as a network of dark websites dedicated to sharing these materials, among other allegations. In the motion to dismiss, Snap asserts that the decoy account searched for and instigated connections with the dangerous accounts, contrary to claims that they came up as algorithmic recommendations. On these and other grounds, including violations of the First Amendment and the legal liability shield Section 230 of the Communications Decency Act, Snap seeks to dismiss the lawsuit.
Section 230
Outgoing FCC Chairwoman Jessica Rosenworcel received praise from the regular commissioners at Thursday's open meeting (see 2411210006) as she announced plans for stepping down Jan. 20, the date the next presidential administration takes power. Addressing reporters, incoming FCC Chairman Brendan Carr repeatedly named "tech censorship" and the "censorship cartel" as major priorities. "Smashing this [censorship cartel] is going to be a top issue," he said.
Dismiss tech groups’ complaint against a Florida social media law “for lack of jurisdiction and failure to state a claim,” Florida Attorney General Ashley Moody (R) argued Friday at U.S. District Court for Northern Florida (docket 4:21-cv-0220). The U.S. Supreme Court in July ruled the First Amendment protects social media platforms’ ability to moderate content, sending the tech industry’s suits against Florida and Texas laws back to the lower courts (see 2407010053). The Computer & Communications Industry Association and NetChoice earlier this month submitted an amended complaint asking the district court to permanently enjoin Florida’s social media law (see 2411040033). The plaintiffs lack associational standing to advance First Amendment claims, which “require a host of factual determinations about the members and their platforms,” said Moody. In addition, the amended complaint “is a shotgun pleading,” said the Florida AG. “Plaintiffs have not stated a claim under the First Amendment, the Fourteenth Amendment, or Section 230 of the Communications Decency Act,” nor a claim for injunctive relief for their members.
Republican FCC Commissioner Brendan Carr swiftly pointed Sunday night and Monday to enforcing broadcasters’ “public interest obligation” and ending the commission’s “promotion of” diversity, equity and inclusion policies as key parts of his agenda once he becomes chairman Jan. 20. President-elect Donald Trump announced plans Sunday night to make Carr permanent chairman when he takes office (see 2411170001). Some congressional Democrats and public interest groups criticized Carr’s agenda, while many communications policy-focused groups quickly praised the long-expected appointment (see 2407120002).
The Trump administration will focus on First Amendment rights, and its agenda could include a review of the tech industry’s role in weakening those rights, FCC Commissioner Brendan Carr wrote in letters to Facebook, Google, Apple and Microsoft last week. Carr requested information that could “inform the FCC’s work to promote free speech and a diversity of viewpoints.” He noted the FCC’s role in administering the Communications Act, which includes the tech industry’s liability shield, Section 230. The statute grants tech companies benefits when it operates in “good faith,” said Carr. He’s seeking information about the industry’s relationship with NewsGuard, a tool that ranks news and information on social media sites. Carr requested the companies identify their ad and marketing partners. The companies didn’t comment Friday.
Republican FCC Commissioner Brendan Carr, an overwhelming favorite to become chairman when President-elect Donald Trump returns to office Jan. 20 (see 2411060042), said Thursday the FCC should stand down from working on controversial matters during the transition from President Joe Biden to Trump’s second term. House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., sent FCC Chairwoman Jessica Rosenworcel a “pencils down” letter Wednesday (see 2411060043). Senate Republicans will likely send Rosenworcel similar demands soon.
The 5th U.S. Circuit Court of Appeals on Thursday remanded the tech industry’s lawsuit against Texas’ social media law (see 2409260062). A three-judge panel agreed with the U.S. Supreme Court that the “record is underdeveloped,” and said the lower court must answer key questions about application of HB-20. Given NetChoice and the Computer & Communications Industry Association filed a facial challenge against all applications of the law, they have the burden of developing a “factual record” to support that request, said Thursday's opinion. Judges Edith Jones, Leslie Southwick and Andrew Oldham heard oral argument in May 2022 (see 2205090061). “Plaintiffs have not yet developed that record or proved their claims,” the court said. “Therefore, the cause is remanded for further proceedings consistent with this opinion.” The ruling lists a number of outstanding questions about whom HB-20 covers, how companies must moderate content and the impact on free expression. “Because these are fact-intensive questions that must be answered by the district court in the first instance after thorough discovery, we remand.” The panel said it expects the district court to also “thoroughly” address questions about Section 230 of the Communications Decency Act and Texas’ argument that the tech industry’s position on free speech is inconsistent with its views on the liability shield. The Supreme Court remanded the case to the 5th Circuit in July (see 2407010053). CCIA Chief of Staff Stephanie Joyce said in a statement: "CCIA looks forward to further proving in court that Texas HB20 violates the First Amendment." The office for Texas Attorney General Ken Paxton (R) didn’t comment.
Digital First Project Executive Director Nathan Leamer on Wednesday said whoever chairs the FCC during the next administration should take on a more forceful role in advocating for Congress to renew the commission’s lapsed spectrum auction authority. Leamer, who served as an aide to former FCC Chairman Ajit Pai, said during a Georgetown University Center for Business and Public Policy webcast that whichever party wins the White House Nov. 5 will reexamine broadband affordability issues. He believes the FCC will have to brace for the impact of potential federal court rulings striking down its recent orders reclassifying broadband as a Communications Act Title II service and instituting anti-digital discrimination rules.
Dealing with false or malevolent online misinformation that can spur violence means taking "a meaningful precaution" that nonetheless still allows free expression, Brian Leiter, director-University of Chicago's Center for Law, Philosophy and Human Values, wrote this week in the Journal of Free Speech Law. Regulators could be empowered to close particular sites such as Google, Facebook and YouTube temporarily during emergencies, he said. But a better approach might be reducing the number of sites that offer incitement, though that "would require a significant change to First Amendment jurisprudence in the United States, which is particularly permissive." Online sites also should be subject to tortious liability for harm that a reasonable person would see as a foreseeable consequence of speech they knew or should have known was false, he said. The Communications Decency Act's Section 230 is a large obstacle to legal remedies for harmful online misinformation, and its protections for websites should be revoked, Leiter said. "The idea that website owners get a free pass on hosting tortious wrongdoing, but not on hosting copyright violations, is prima facie bizarre."
Meta, Google, TikTok and Snapchat must defend themselves against claims that their platforms are designed to “foster compulsive use by minors,” the U.S. District Court for the Northern District of California ruled Tuesday (docket 4:22-md-03047-YGR). Judge Yvonne Gonzalez Rogers ruled on hundreds of consolidated legal claims filed on behalf of children, school districts, local governments and state attorneys general. The ruling covered lawsuits from 35 different states, including California, New York, Georgia and Florida. Rogers “generally denied” the companies’ motions to dismiss but limited many claims' scope. “Much of the States’ consumer protection claims are cognizable,” she said. “Meta’s alleged yearslong public campaign of deception as to the risks of addiction and mental harms to minors from platform use fits readily within these states’ deceptive acts and practices framework.” However, she noted Communications Decency Act Section 230 provides a “fairly significant limitation on these claims.” Section 230 also protects against “personal injury plaintiffs’ consumer-protection, concealment, and misrepresentation theories,” she said. Rogers declined to dismiss “theories of liability predicated on a failure-to-warn of known risks of addiction attendant to any platform features or as to platform construction in general,” including claims against YouTube, Snap and TikTok. The companies didn’t comment.