A California federal appeals court has denied legal immunity to Snapchat developer Snap for the 2017 death of two teens and a 20-year-old when their car crashed into a tree at 113 miles per hour (180 km/h). Parents of two of the boys sued Snap, arguing that Snapchat’s “speed filter” encouraged the boys to accelerate their car to more than 100 miles per hour.

Last year, Snap convinced a federal trial judge that Section 230 of the Communications Decency Act shielded Snap from liability in the case. The once-obscure 1996 law has become a frequent source of controversy as technology giants have used it to disclaim responsibility for harmful content on their platforms.

Snap argued that the law gave it immunity in the boys’ death. Snapchat pioneered the use of image filters, a feature that has been widely copied by other apps. In 2017, Snapchat’s offerings included a speed filter that displayed a user’s current speed—either on its own or superimposed on the user’s photo. Users could use this filter to show their friends how fast they were moving at the time of the post.

“At some point during their drive, the boys’ car began to speed as fast as 123 MPH,” the 9th Circuit Appeals Court wrote in Tuesday’s ruling. “They sped along at these high speeds for several minutes, before they eventually ran off the road at approximately 113 MPH and crashed into a tree. Tragically, their car burst into flames, and all three boys died.”

Shortly before the crash, one of the boys opened the Snapchat app and used the speed filter to document how fast the car was moving.

“Many of Snapchat’s users suspect, if not actually believe, that Snapchat will reward them for recording a 100-MPH or faster snap using the Speed Filter,” the appeals court wrote. “According to plaintiffs, this is a game for Snap and many of its users with the goal being to reach 100 MPH, take a photo or video with the Speed Filter, and then share the 100-MPH-Snap on Snapchat.”

The parents sued, arguing that Snapchat is a negligently designed product. They argued that Snap knew—or should have known—that offering the speed filter would encourage young people to drive at dangerously high speeds to impress their friends and possibly earn rewards on the Snapchat platform.

Snap said that it was shielded by Section 230 because the company was being held responsible for the content of the boy’s snap. A lower court bought that argument, but a three-judge panel of the Ninth Circuit rejected it.

“The parents’ complaint does not seek to hold Snap liable for its conduct as a publisher or speaker,” the appeals court said. “Their negligent design lawsuit treats Snap as a products manufacturer, accusing it of negligently designing a product (Snapchat) with a defect (the interplay between Snapchat’s reward system and the speed filter).”

The case is far from over. Now that we know Snap doesn’t enjoy Section 230 immunity, the case will go back to the trial court to determine whether Snap is actually liable for the boys’ death.

Defective products?

Tuesday’s opinion cited a landmark 2016 ruling by the same Ninth Circuit Appeals Court that also rejected Section 230 immunity. In that case, a woman sued a modeling site after men used it to lure her into a fake modeling gig and rape her. She alleged that the site knew her rapist had used the site to lure other women and hadn’t done anything to warn its users about the threat.

The modeling site claimed immunity under Section 230, but the appeals court rejected that argument, finding that the lawsuit wasn’t trying to hold them responsible for the content of user posts. Rather, it was about failing to warn users about a danger faced by women using the site.

Last year, I wrote about another case where courts did find that Section 230 immunity applied. A man posted fake profiles to the gay dating app Grindr as a way of harassing an ex-boyfriend. The profiles claimed the ex-boyfriend was interested in rough sex and had rape fantasies.

“There would be intruders in the stairwell at his apartment building waiting for him,” the victim’s lawyer told Ars in a 2019 interview. “They would follow him when he was outside walking his dog. On one day, four men came in four minutes.”

After repeatedly reporting the problem to Grindr without much effect, the ex-boyfriend sued Grindr. Much like the parents in the Snap case, the ex-boyfriend argued that a lack of effective anti-harassment tools made Grindr a defective product. But Grindr successfully invoked Section 230, arguing that it couldn’t be held responsible for the content of fake dating profiles submitted by users—even if the profiles resulted in real-world violence.

Many politicians—including Presidents Donald Trump and Joe Biden—have called for modification or repeal of Section 230. However, there’s no consensus about how to change the law or what might take its place.

https://arstechnica.com/?p=1762775