The tool will likely be released anyway, testing Meta’s litigiousness.
Credit: NurPhoto / Contributor | NurPhoto
Meta has defeated a lawsuit—for now—that attempted to invoke Section 230 protections for a third-party tool that would have made it easy for Facebook users to toggle on and off their news feeds as they pleased.
The lawsuit was filed by Ethan Zuckerman, a professor at University of Massachusetts Amherst. He feared that Meta might sue to block his tool, Unfollow Everything 2.0, because Meta threatened to sue to block the original tool when it was released by another developer. In May, Zuckerman told Ars that he was “suing Facebook to make it better” and planned to use Section 230’s shield to do it.
Zuckerman’s novel legal theory argued that Congress always intended for Section 230 to protect third-party tools designed to empower users to take control over potentially toxic online environments. In his complaint, Zuckerman tried to convince a US district court in California that:
Section 230(c)(2)(B) immunizes from legal liability “a provider of software or enabling tools that filter, screen, allow, or disallow content that the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” Through this provision, Congress intended to promote the development of filtering tools that enable users to curate their online experiences and avoid content they would rather not see.
Digital rights advocates, the Electronic Frontier Foundation (EFF), the Center for Democracy and Technology, and the American Civil Liberties Union of Northern California, supported Zuckerman’s case, urging that the court protect middleware. But on Thursday, Judge Jacqueline Scott Corley granted Meta’s motion to dismiss at a hearing.
Corley has not yet posted her order on the motion to dismiss, but Zuckerman’s lawyers at the Knight Institute confirmed to Ars that their Section 230 argument did not factor into her decision. In a statement, lawyers said that Corley left the door open on the Section 230 claims, and EFF senior staff attorney Sophia Cope, who was at the hearing, told Ars Corley agreed that on “the merits the case raises important issues.”
Instead of weighing if Section 230 immunity applied, one of Zuckerman’s lawyers, Ramya Krishnan, confirmed to The New York Times that “the court believes Professor Zuckerman needs to code the tool before the court resolves the case.”
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“Unfollow Everything 2.0” likely to be released anyway
In July, Meta had argued that the lawsuit was “baseless” because the tool was unreleased and Meta had no plans to sue over an unreleased tool. That was precisely the point of Zuckerman’s suit, of course—that third-party developers risked costly legal battles by releasing tools, even if Section 230 should shield them from Big Tech lawsuits. In May, Krishnan told Ars that “it’s hard to know how big that universe is” of potential third-party tools that could be empowering social media users “in part because of the chilling effect of the cease-and-desist letters and other threats of legal action that Meta and the other companies have sent the developers that have tried to create these tools.”
Zuckerman’s battle is likely far from over, as the ruling dismissed his complaint without prejudice, which his lawyers said left a “door open” for an appeal. Zuckerman is currently abroad and has not signaled intentions for next steps yet. But back in May, Zuckerman told Ars that he would proceed with releasing the tool whether he won his lawsuit or not. If Meta then sued to block the tool, he’d be glad to have a paper trail showing that was predictable and that his claim was not “baseless,” as Meta successfully argued.
The Knight Institute said that Zuckerman’s legal team is “disappointed” by Corley’s ruling but will “continue to believe that Section 230 protects user-empowering tools and looks forward to the court considering that argument at a later time.”
It seems unlikely that Meta will stand by if the tool is released. Through the litigation, Meta had argued that the automated nature of Zuckerman’s tool violated Facebook’s terms, which Zuckerman disputed. Internet law expert Eric Goldman previously told Ars that Zuckerman’s suit may have been too ambitious—asking the court to decide too many complex legal questions—and suggested that Meta was perhaps positioned to block the tool even if Zuckerman eventually wins the legal battle.
Reached for comment, Meta’s spokesperson reiterated a prior statement that the lawsuit is “baseless.”
