By Hannah Denham
Jason Davis, 17, was behind the wheel the evening of May 28, 2017, his car tearing down a southern Wisconsin road, when one of his passengers pulled out his phone.
Landen Brown, 20, had opened his Snapchat app and swiped the screen to show the "speed filter," which records speed in real time. Davis had long passed the posted limit - one Snap clocked him at 123 mph - when the vehicle ran off the road and crashed into a tree at an estimated 113 mph, killing Davis, Brown and a second passenger, Hunter Morby, 17, court documents show.
The circumstances of the wreck were outlined in a 2019 lawsuit filed by the parents of Brown and Morby, who said the "negligent design" of the Snap Inc. app contributed to the crash because it encouraged speeding. A California judge dismissed the case last year, citing the Communications Decency Act, which has long shielded tech companies and social media platforms for content published on their platforms.
On Tuesday, a three-judge panel with the 9th U.S. Circuit Court of Appeals reversed that decision, finding that the law does not apply in this case because the key issue was not Snap's role as a platform but rather the design of the app itself.
The "speed filter" is no longer available for driving speeds. A Snap spokeswoman declined to comment. The Santa Monica, Calif.-based company was founded in 2011 and has a market cap of $82.4 billion.
The 1996 Communications Decency Act, Section 230, establishes that companies that operate online forums are not considered the publisher of the posts made on their sites and therefore cannot be held liable for their content, even if the content itself is harmful or breaks a law.
Daphne Keller, the director of Stanford Cyber Policy Center's platform regulation program, says the ruling signals the potential for a legislative response and further court interpretation of Section 230.
"It's not that there was some bad post that Snapchat failed to take down," she said. "I think it's useful to get court clarifications to tell us that 230 doesn't immunize every single thing. It already has these built-in limits that are useful, and we don't actually need to rush to pass these new laws if the actual law is more limited than people think."
Jeff Kosseff, an assistant professor of cybersecurity law at the U.S. Naval Academy, said the Section 230 argument was a weak one for Snapchat to use.
"Stepping back, I think that Snapchat would have a much stronger argument on the merits of the case," he said. "But it's really right on the borders. It could've gone either way. I do think that the 9th Circuit's ruling is a little difficult to square with some other appellate courts. I don't think we quite have it yet, but I think we're working our way to a circuit split where we would have the Supreme Court interpret 230."
Tuesday's ruling opens the door for plaintiffs Carly Lemmon, Michael Morby, Samantha Brown and Marlo Brown to pursue further action against Snap.
"We appreciate the careful attention that the 9th Circuit paid to this case, and the well-written, unanimous opinion reflects such thoughtful work by the panel," Naveen Ramachandrappa, one of the plaintiffs' attorneys, said in an email to The Washington Post. "We look forward to returning to the District Court and having this case move forward with discovery and a fair determination of the merits by a jury."
Snapchat, which operates through one-to-one communication with messages, photos and video, or allows users to make photos or video available to only their list of friends, is popular among teenagers and young adults. The company has been snagged in several court cases related to student speech, including one that made it to the Supreme Court.
Its speed filter was the subject of another case in Georgia, after the plaintiff, Wentworth Maynard, was involved in a crash in 2015 that left him with brain injury and alleged that the driver who hit him was using Snapchat's speed filter to monitor her speed of more than 100 mph. Maynard, who was also represented by Ramachandrappa, sued the driver and Snap for negligence, but the lower court and appellate court dismissed the allegations against Snap under Section 230.
Kosseff emphasized that Tuesday's ruling was more significant than the Georgia appellate court's dismissal because of the 9th Circuit Court's location in San Francisco is near where many Big Tech companies are based.
Legislative measures targeting Section 230 have surfaced within the past year as politicians on opposing sides wrestle with the question of regulating Big Tech. Kosseff noted the significance of two of the circuit judges (the third was a guest judge) on the panel - appointed by presidents from different parties - agreeing on the issue. Kim McLane Wardlaw, who delivered the opinion, was appointed by President Bill Clinton while Carlos Bea was appointed by President George W. Bush.
"The 9th Circuit is the most important court for Section 230 cases, other than the Supreme Court," he said. "I think that they both agreed on this is worth noting."
The Washington Post