News & Events

D.C. Circuit Holds Locksmiths Cannot Unlock Google’s § 230 Protection

Section 230 immunity (47 U.S.C. § 230 (c)(1)) protects internet platforms, such as Google or Twitter, from culpability for the information they publish. Section 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider.”

In Marshall’s Locksmith Service, Inc. v. Google, LLC, – – – F.3d – – – , 2019 WL 2398008 (D.C. Cir. June 7, 2019), the United States Court of Appeals for the D.C. Circuit considered yet another failed attack on Google’s § 230 immunity. Although the Court rejected several arguments seeking to impose liability on Google for its publication of false information provided by third parties, the Court recognized one theory that might prove viable to establish liability in future cases.

In Marshall’s, the locksmiths sued Google and other internet search service providers for flooding search results with scam locksmith information. The information made the scammers falsely appear to have locksmith businesses located near the party searching for locksmith services.

The locksmiths first argued that the Court should hold Google liable because it routinely published locksmith information that Google knew were scams. The Court held that whether Google knew it was publishing scam materials does not affect Google’s § 230 immunity because the scam content was “provided by another information content provider,” and not created by Google. The locksmiths next argued that Google published its own original content outside of § 230 protection because Google provided map pinpoints of the scammers’ false locations. The Court rejected that argument too, holding that translating text to graphic information was just that—a translation—and translation of information provided by others is not the same as creating original content.

Lastly, the locksmiths argued that the map pinpoints were not merely a translation of an address to a map pinpoint. Sometimes the scammers provided only a phone number, with no address. In those instances, a Google algorithm guesses a location to generate a map pinpoint. The Court held that § 230 immunity still protected Google because the map pinpoints were developed from information the scammers provided. This holding turned, in part, on the Court’s characterization of the algorithm as a “neutral means” of developing the map pinpoints that did not distinguish between real locksmiths and scammers.

With this holding, the D.C. Circuit has acknowledged a potential chink in the protective armor § 230 provides because not all algorithms operate in a neutral manner. As search engines and social media platforms increasingly utilize more sophisticated algorithms, they are not merely publishing the content of others. Instead, they are curating a non-neutral experience that a court could potentially characterize as original content.