Today, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Ninth Circuit to affirm a ruling that Section 230 protects app stores and social media platforms from liability for carrying, and sharing data with, casino-style gaming apps.

The plaintiffs allege, among other things, that app stores and platforms benefit developers of these apps by providing them “data analytics” on how the apps are performing. As TechFreedom’s brief explains, this theory of liability is foreclosed by the briefs, argument, and ruling in the recent Supreme Court case Gonzalez v. Google.

“Courts should not try to draw arbitrary lines separating what is and is not protected by Section 230,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “In Gonzalez, the federal government purported to offer the Supreme Court a clean line between ‘hosting’ content (protected by Section 230) and ‘recommending’ it (not protected). As became clear at oral argument, however, the justices found this line to be unworkable—indeed, illusory.”

“The Supreme Court’s Gonzalez (non-)ruling resolves most of this appeal,” Barthold continued. “Recognizing that there’s no sound way to judicially narrow Section 230, the justices wisely did not try to do so. They issued a short unsigned opinion that left the Section 230 status quo in place. The Ninth Circuit, in this case, should follow the high court’s lead. It should not step in and try to do ‘better’ than the justices. It should not try to draw lines the justices could not draw.”

“Section 230 broadly protects the publishing of third-party content,” Barthold concluded. “Publishers benefit those they publish in many ways—e.g., by recommending their content, by offering them edits and other feedback, and, as here, by giving them information that shows how well their content is performing. Just as the Supreme Court could not parse degrees of ‘recommendation’ benefit, this Court should not try to parse degrees of ‘information’ benefit. The message of Section 230—and of the briefing, oral argument, and decision in Gonzalez—is that publishing activity is protected, period.”

The case is the Simulated Casino-Style Games Litigation, Nos. 22-16888, -16889, -16914, -16916, -16921, -16923 (9th Cir.).


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