Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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A recent Second Circuit decision makes clear that the safe harbor that social media and other Internet companies enjoy under Section 230 of the Communications D

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CDA Section 230 Immunizes Platform From Liability for Friend and Content Suggestion Algorithms

CDA Section 230 Immunizes Platform From Liability for Friend and Content Suggestion Algorithms | Socially Aware

J. Alexander Lawrence

A recent Second Circuit decision makes clear that the safe harbor that social media and other Internet companies enjoy under <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">Section 230 of the Communications Decency Act</a> broadly applies to a wide variety of claims.When you think about the Section 230 safe harbor, don’t just think defamation or other similar state law claims. Consider whether the claim—be it federal, state, local, or foreign—seeks to hold a party that publishes third-party content on the Internet responsible for publishing the content. If, after stripping it all down, this is the crux of the cause of action, the safe harbor should apply (absent a few statutory exclusions discussed below). The safe harbor should apply even if the party uses its discretion as a publisher in deciding how best to target its audience or to display the information provided by third parties.In 2016, Facebook was sued by the estates of four U.S. citizens who died in terrorist attacks in Israel and one who narrowly survived but was grievously injured. The plaintiffs <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2236&context=historical" target="_blank" rel="noopener">claimed</a> that Facebook should be held liable under the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-113B" target="_blank" rel="noopener">federal Anti-Terrorism Act</a> and the Justice Against Sponsors of Terror Act, which provide a private right of action against those who aid and abet acts of international terrorism, conspire in furtherance of acts of terrorism, or provide material support to terrorist groups. The plaintiffs also asserted claims arising under Israeli law.The plaintiffs carefully drafted their complaint to try to avoid the Section 230 safe harbor. While conceding that Facebook did not create any of the Hamas-sponsored content, the plaintiffs claimed that its friend and content suggestion algorithms drove Hamas content to like-minded individuals who carried out the attacks.Facebook moved to dismiss the case under Section 230. Section 230 provides that “no provider or users of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In order for the Section 230 safe harbor to apply, the <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">defendant invoking the safe harbor must prove each of the following</a>: (1) it “is a provider . . . of an interactive computer service; (2) the claim is based upon information provided by another information content provider; and (3) the claim would treat the defendant as the publisher or speaker of that information.”A district court sitting in New York granted Facebook’s motion to dismiss, finding that all of the plaintiffs’ claims, including their federal claims and their Israeli law claims, were subject to the Section 230 safe harbor. The plaintiffs appealed to the Second Circuit.In a 2-1 decision, <a href="http://www.ca2.uscourts.gov/decisions/isysquery/dab1202e-d5a9-4277-8972-efa7fba488b6/1/doc/18-397_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/dab1202e-d5a9-4277-8972-efa7fba488b6/1/hilite/" target="_blank" rel="noopener">the Second Circuit recently sided with Facebook</a>. Two members of the panel agreed with the district court that the use of friend and content suggestion algorithms was like any other editorial conduct that remains immunized under Section 230. They reasoned that websites often make decisions about how prominently to display content on the site or whether to publish it at all. One member of the panel, however, felt this stretched matters too far and that Facebook should not receive the benefits of the safe harbor. That judge would have held that, by employing its friend and content suggestion algorithms, Facebook no longer acted as a mere publisher. The judge reasoned that “creation of social networks goes far beyond the traditional editorial functions that the CDA immunizes.” Of course, creating social networks is exactly what all social media sites do.The plaintiffs sought review by the full Second Circuit, which was denied. Thus, the majority ruling stands.While those who have a passing familiarity with Section 230 may think that it is limited to state law defamation claims, and other similar state law causes of action, the Second Circuit recognized that Section 230 has been applied to a wide variety of causes of action, including federal housing discrimination, securities fraud, and cyber-squatting.The Second Circuit recognized that there are specific types of causes of action that Congress excluded from the safe harbor. For instance, the safe harbor does not apply to: federal criminal statutes; laws pertaining to intellectual property; <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-119" target="_blank" rel="noopener">the Electronic Communications Privacy Act</a> or any similar state law; or any state or federal law governing sex trafficking.The Second Circuit decision makes clear that, unless the claim being asserted falls squarely into one of the few exceptions listed in the Act, the safe harbor applies. And these exceptions have generally been narrowly construed.For instance, the Anti-Terrorism Act is a criminal statute and part of the criminal code. The Act, however, <a href="https://www.law.cornell.edu/uscode/text/18/2333" target="_blank" rel="noopener">provides a private right of action</a>. The Second Circuit held that, while the Section 230 safe harbor would not apply to any enforcement of a criminal law, the safe harbor does apply to any civil right of action provided under the criminal code. There are any number of criminal statutes that provide private causes of action. Think RICO or the Computer Fraud and Abuse Act.Likewise, Section 230 does not apply to intellectual property law claims (think copyright or trademark claims). Although the DMCA provides important protections, social media and other Internet companies may under certain circumstances be held liable for copyrighted material posted to the site by a third party. Nonetheless, with some notable exceptions, courts have generally taken a narrow view as to what qualifies as an intellectual property law. For instance, <a href="https://casetext.com/case/craft-beer-stellar-llc-v-glassdoor-inc-1" target="_blank" rel="noopener">courts have held that the Section 230 safe harbor applies to claims under the federal Defend Trade Secrets Act</a>. And while the Lanham Act addresses both trademark and unfair competition claims, courts have generally held that <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2910&context=historical" target="_blank" rel="noopener">only the trademark provisions are exempted from the Section 230 safe harbor protection</a>.And, while the Second Circuit did not need to reach the issue, citing a lack of federal jurisdiction over the plaintiffs’ foreign law claims, the district court held that the plaintiffs’ Israeli law claims were subject to the safe harbor as well.As previously noted in other posts, the Section 230 safe harbor has found itself under <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">pressure from certain courts</a> and Congress seeking to limit its scope. So far, the Section 230 safe harbor has proven resilient. <a href="https://www.sociallyawareblog.com/2019/07/17/federal-circuit-holds-that-section-230-locks-out-locksmiths/" target="_blank" rel="noopener">Most federal courts continue to recognize that the safe harbor is broad</a> and, absent some act of Congress, should be broadly applied.The Second Circuit’s recent decision further reinforces that the Section 230 safe harbor immunizes against a wide variety of claims and that no matter how creatively a plaintiff may seek to characterize a claim to avoid the safe harbor, it still protects social media and other Internet companies against liability for publishing third-party content.