• by Wendy Davis  @wendyndavis, March 7, 2024

A recent court decision that allows parents to sue Snapchat over their children's fentanyl overdoses could effectively gut Section 230 of the Communications Decency Act -- a 28-year-old media law that protects websites from lawsuits over users' posts -- tech industry organizations and a nonprofit overdose prevention group told a California appellate court this week.

“By denying immunity for third-party content, the trial court’s decision renders Section 230 nearly meaningless, creating confusion and inviting frivolous litigation against internet services that Section 230 is meant to prevent,” NetChoice, the Chamber of Progress and Team Awareness Combating Overdose said in a proposed friend-of-the-court brief filed Wednesday.

“The resulting wave of drawn-out litigation -- or its mere threat -- would pressure, if not practically force, services to remove legitimate content and drop key design features like encryption, undermining the Internet’s vibrancy and threatening users’ privacy and safety,” the organizations added.

The groups' papers come in a lawsuit brought last year against Snapchat by parents of minors who overdosed after purchasing fentanyl from connections made through the social platform. The parents' class-action complaint largely centered on claims that Snapchat's service was defective due to design features such as disappearing messages, which the parents alleged facilitated drug sales.

Snapchat sought a fast dismissal, arguing it was protected by Section 230 of the Communications Decency Act -- a 1996 law that broadly immunizes web companies for illegal content posted by users.

Los Angeles Superior Court Judge Lawrence Riff rejected Snapchat's request last month, essentially holding that Section 230 doesn't protect interactive companies from liability over the design of their services.

Snapchat appealed Riff's ruling and, on Tuesday, 2nd Appellate District Court of Appeal Judge Judith Ashmann-Gerst issued an emergency stay that temporarily halted the parents' lawsuit, pending further arguments.

NetChoice and the other outside groups are now backing Snapchat's appeal.

The organizations argue in their brief that Riff's ruling could allow other plaintiffs to circumvent Section 230 by arguing that their claims focus on design choices.

“Imagine a website that allows users to post candid and graphic coverage of the wars in Ukraine or Gaza,” the groups write. “In some vague sense, the website is arguably 'designed' to host violent content. A plaintiff could note this and sue for harms allegedly caused by distributing such coverage.”

The organizations add that unless Riff's ruling is reversed, it will pressure web companies to abandon privacy-promoting features, such as Snapchat's automatic deletion of messages.

“The complaint attacks Snap’s ephemerality features as harmful, even though these features facilitate healthy social expression and privacy,” the organizations write.

“By deleting data, Snap’s features reduce the risk of data breaches and mitigate the general concern that everything a person does is permanent on the Internet,” the groups add.