Judge To Zuckerman: Release Your App First, Then We’ll Talk Section 230

The first shot to use Section 230 to force adversarial interoperability on platforms has hit a setback.

Earlier this year, we wrote about an absolutely fascinating lawsuit that was an attempt to activate a mostly-ignored part of Section 230 in a really interesting way. Most people know about Section 230 for its immunity protections for hosting and content moderation of third party content. But Section (c)(2)(B) almost never warrants a mention. It says this:

No provider or user of an interactive computer service shall be held liable on account of any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)

This part of the law almost never comes up in litigation, but Ethan Zuckerman, who has spent years trying to inspire a better internet (partly as penance for creating the pop-up ad), along with the Knight First Amendment Institute at Columbia, tried to argue that this section means that a platform, like Meta, can’t threaten legal retaliation against developers who are offering third party “middleware” apps that work on top of a platform to offer solutions that “restrict access to material” on a platform.

The underlying issue in the lawsuit was that Ethan wanted to release a plugin called “Unfollow Everything 2.0” based on an earlier plugin called “Unfollow Everything,” which allowed Facebook users to, well, unfollow everything. This earlier plugin was created by developer Louis Barclay, after he found it useful personally to just unfollow everyone on his Facebook account (not unfriend them, just unfollow them). Meta banned Barclay for life from the site, and also threatened legal action against him.

In the last few years, it’s unfortunately become common for the big platforms to legally threaten any service that tries to build tools to work on top of the service without first getting permission or signing some sort of agreement to access an API.

These legal threats have wiped out the ability to build tools for other platforms without permission. They’ve also very much gotten in the way of important “adversarial interoperability” tools and services that history has shown have been vital to innovation and competition.

So the argument from Zuckerman is that this little snippet from Section 230 says that he can’t face legal liability for his tool. Meta could still take technical actions to try to break or block his app, but they couldn’t threaten him with legal actions.

Meta’s response to all of this was that the court should reject Zuckerman’s case because the specifics of the app matter, and until he’s released the app, there’s no way to actually review this issue.

The Court should decline Plaintiff’s request to invoke this Court’s limited jurisdiction to issue an advisory opinion about a non-existent tool. Plaintiff’s claims—which are contingent on facts that cannot be known until after he has created and released Unfollow Everything 2.0 and Meta has had an opportunity to evaluate how the tool actually works—are not ripe for review under either Article III of the Constitution or the Declaratory Judgment Act, 28 U.S.C. § 2201.

It appears that the judge in the case, Judge Jacqueline Scott Corley, found that argument persuasive. After a hearing in court last Thursday, the judge dismissed the case, saying that Zuckerman could conceivably refile once the app is released. While a written opinion is apparently coming soon, this is based on what happened in the courtroom:

Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California granted Meta’s request to dismiss the lawsuit on Thursday, according to court records. The judge said Mr. Zuckerman could refile the lawsuit at a later date.

This is perhaps not surprising, but it’s still not good. It’s pretty obvious what would happen if Zuckerman were to release his app because we already know what happened to Barclay, including the direct threats to sue him.

So, basically, the only way to move forward here is to put himself at great risk of facing a lawsuit from one of the largest companies in the world with a building full of lawyers. The chilling effects of this situation should be obvious.

I don’t know what happens next. I imagine Zuckerman can appeal to the Ninth Circuit, or he could actually try to release the app and see what happens.

But seeing as how the big platforms have spent over a decade abusing legal threats against companies that are just trying to help build products on top of those platforms, it would have been nice to have received a clean win that such “middleware” apps can’t be blocked through legal intimidation. Unfortunately, we’re not there yet.