Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 1 of 37
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`IN RE: APPLE INC. APP STORE
`SIMULATED CASINO-STYLE GAMES
`LITIGATION
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`IN RE: GOOGLE PLAY STORE
`SIMULATED CASINO-STYLE GAMES
`LITIGATION
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`IN RE: FACEBOOK SIMULATED
`CASINO-STYLE GAMES LITIGATION
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`Case No. 5:21-md-02985-EJD
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`Re: Dkt. No. 92
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`Case No. 5:21-md-03001-EJD
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`Re: Dkt. No. 69
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`Case No. 5:21-cv-02777-EJD
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`Re: Dkt. No. 99
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`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANTS’
`MOTION TO DISMISS PURSUANT
`TO SECTION 230 OF THE
`COMMUNICATIONS DECENY ACT;
`SUA SPONTE CERTIFYING ORDER
`FOR INTERLOCUTORY APPEAL
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`
`
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`In this putative class action, Plaintiffs allege that Defendants Apple, Google, and Facebook
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`violate various state consumer protection laws by distributing game applications (“apps”) that
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`Case Nos.: 5:21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENY ACT; SUA
`SPONTE CERTIFYING ORDER FOR INTERLOCUTORY APPEAL
`1
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`Northern District of California
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`United States District Court
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`

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`Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 2 of 37
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`operate as social casinos and thus permit illegal gambling. Defendants separately move to dismiss
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`the complaints against them, arguing that they are immune from suit under Section 230 of the
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`Communications Decency Act (“CDA”). Having considered the Parties’ written submissions as
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`well as the oral arguments of counsel presented at the hearing on August 4, 2022, the Court
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`GRANTS IN PART AND DENIES IN PART Defendants’ respective motions to dismiss.
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`I.
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`BACKGROUND
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`
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`Over the last decade, large social media companies and technology developers have turned
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`their focus on developing applications or “apps.” As relevant in this case, slot machine companies
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`have partnered with technology companies to develop “social casino applications.” Plaintiffs’
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`Master Complaint1 (“Compl.”) ¶ 1, Dkt. No. 73. Social casinos are playable “apps” that can be
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`accessed via smartphones, tablets, and internet browsers. These virtual casinos attempt to recreate
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`an “authentic Vegas-style” slot-machine, gambling experience. Compl. ¶ 2.
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`The simulated social casino apps are designed to look like traditional casino games, such
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`as slot machines, bingo, or craps. This seemingly makes social casinos apps addictive in the same
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`way as “in-person” gambling. Compl. ¶¶ 3, 4. Indeed, the social casinos apps function much like
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`in-person gambling. Users purchase virtual “chips” in exchange for real money. Compl. ¶ 3.
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`Users then gamble those chips at slot machines games in hopes of winning “still more chips to
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`keep gambling.” Compl. ¶ 3. For example, in “DoubleDown Casino,” players purchase “chip
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`packages” costing up to $499.99, and then use those chips to play. Compl. ¶ 3. However, social
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`casinos do not allow players to cash out their chips. Compl. ¶ 3. Instead, both purchased and
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`“won” chips can only be used for more slot machine “spinning.” Compl. ¶ 3. This makes the
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`social casino apps “extraordinarily profitable and highly addictive.” Compl. ¶ 4. One important
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`distinction, however, is that social casino developers have access to big data, which allows them to
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`1 For ease, the Court references the Master Complaint filed in the “Apple,” 21-md-2985, docket as
`“Compl.” and refers generally to that complaint, unless a specific citation to the other two
`complaints is needed.
`Case Nos.: 5:21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENY ACT; SUA
`SPONTE CERTIFYING ORDER FOR INTERLOCUTORY APPEAL
`2
`
`Northern District of California
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`United States District Court
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`

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`Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 3 of 37
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`identify, target, and exploit consumers prone to addictive behaviors. Compl. ¶ 4.
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`Plaintiffs allege that these social casino apps do not, and cannot, operate and profit at such
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`a high level from these illegal games on their own. See Compl. ¶ 5 (“Their business of targeting,
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`retaining, and collecting losses from addicted gamblers is inextricably entwined with the
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`Platforms.”). The Platforms “retain full control over allowing social casinos into their stores, and
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`their distribution and promotion therein,” and “share directly in a substantial portion of the
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`gamblers’ losses, which are collected and controlled by the Platforms themselves.” Compl. ¶ 5;
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`see also Compl. ¶ 6 (“Because the Platforms are the centers for distribution and payment, social
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`casinos gain a critical partner to retain high-spending users and collect player data, a trustworthy
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`marketplace to conduct payment transactions, and the technological means to update their apps
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`with targeted new content designed to keep addicted players spending money.”). Importantly,
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`each complaint alleges that Apple, Facebook, and Google conspired with the social casino app
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`developers to participate in a pattern of racketeering activity in violation of the Racketeer
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`Influenced and Corrupt Organizations Act (“RICO”). Compl. ¶¶ 16, 17, 489–521; Google
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`Complaint ¶¶ 16, 17, 505–37, Dkt. No. 52; Facebook Complaint ¶¶ 16, 17, 467–99, Dkt. No. 80.
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`A. Offering, Categorizing, and Promoting of the Social Casino Apps
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`Each year, consumers buy billions of dollars of online casino chips from the Platforms.
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`The Platforms help the social casino app developers target consumers to maximize revenue.
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`Compl. ¶ 87. “For instance, [Defendant] Apple provides marketing guidance, tools, promotional
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`offers, and more to app developers (like the developers of the Illegal Slots) to help drive users’
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`discovery of apps and in-app purchases.” Compl. ¶ 87; see also Google Complaint ¶ 85;
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`Facebook Complaint ¶¶ 71, 171 (“Underlying our paid marketing efforts are our data analytics
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`that allow us to estimate the expected value of a player and adjust our user acquisition spend to a
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`targeted payback period.” (emphasis added)). Defendant Apple selects apps to “feature” within its
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`App Store, which “increases app installs.” Compl. ¶ 88. Google “offers App Campaigns to
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`promote apps on Google Search, YouTube, Google Play, and more.” Google Complaint ¶ 85.
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`Case Nos.: 5:21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENY ACT; SUA
`SPONTE CERTIFYING ORDER FOR INTERLOCUTORY APPEAL
`3
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 4 of 37
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`Likewise, Facebook uses tools like “targeted ads” and “in-game rewards” to encourage new users
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`to play social casinos. Facebook Complaint ¶ 80.
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`Defendant Apple has publicly acknowledged its active participation in the creation of app
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`content, stating that the commissions it charges on all App Store sales reflect the value of the
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`“tools and software for the development, testing and distribution of developers’ apps, and digital
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`content” that it provides. Compl. ¶¶ 90, 92–97; see also Google Complaint ¶¶ 90, 91 (“The data
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`that the Illegal Slot companies and the Platforms collect on monetization necessarily contribute to
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`the structure and success of the Social Casino Enterprise.”).
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`B. Booking Fees
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`The Platforms also “operate[] as the payment processor for all in-app purchases of virtual
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`chips in the Illegal Slots. [The Platforms] collect[] the money players spend on virtual chips,
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`take[] a cut for itself, and remit[] the rest to the Illegal Slots.” Compl. ¶ 63; Facebook Complaint
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`¶ 60; Google Complaint ¶ 61. Plaintiffs argue that although the Platforms “do not determine the
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`odds of winning any slot machine spins within the apps, they otherwise act much like the
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`bookmakers in gambling parlance: accepting players’ real money, provisioning casino chips to be
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`wagered on illegal slot machine games, earning 30% of the gross sales for their contribution to the
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`enterprise, and sometime later remitting the purchase amount (net of their fee) to the gambling
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`game developers.” Plaintiffs’ Consolidated Opposition to CDA 230 Motions to Dismiss (“Opp.”)
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`at 5, Dkt. No. 104. When players run out of chips, they cannot continue playing the same slot
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`machine game unless they purchase more chips. Compl. ¶¶ 61–63; Facebook Complaint ¶¶ 58–
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`60; Google Complaint ¶¶ 59–61.
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`Virtual chips cannot be used outside of an individual Illegal Slots app. “The chips can
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`only be used to (1) place wagers on slot machine spins, (2) place wagers on the few card game or
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`bingo titles in the Illegal Slots app, or (3) give a “gift” of virtual chips to another account in the
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`app. Substantially all virtual chips are used on slot machine spins.” Compl. ¶ 65; Facebook
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`Complaint ¶ 62; Google Complaint ¶ 63. As alleged by Plaintiffs, because the challenged apps
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`Case Nos.: 5:21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENY ACT; SUA
`SPONTE CERTIFYING ORDER FOR INTERLOCUTORY APPEAL
`4
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 5 of 37
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`derive most of their revenue from slot machine games, it is “substantially certain” that when a user
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`buys virtual chips from the Platforms within a social casino app, those chips will be used to wager
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`on a slot machine spin. Compl. ¶ 56; Facebook Complaint ¶ 53; Google Complaint ¶ 54.
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`C. Targeted Advertising
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`Plaintiffs allege that the Platforms are closely involved in social casinos’ business
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`strategies. For example, the Platforms and developers work together to “monitor the game activity
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`and use the collected data to increase user spending.” Compl. ¶ 91; Facebook Complaint ¶ 81;
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`Google Complaint ¶ 88. Because the Platforms handle all payment processing for the social
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`casinos, the developers often only have access to user data from the Platforms. Compl. ¶ 91;
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`Facebook Complaint ¶ 81; Google Complaint ¶ 88. The Platforms and developers also “work
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`together to target and exploit high-spending users, or ‘whales.’” Compl. ¶ 92; Facebook
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`Compliant ¶ 82; Google Complaint ¶ 89. For example, Apple “aids in the design and direction of
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`targeted advertising, both on and within its App Store and other related Apple platforms, all aimed
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`at driving new customers to [socials casinos] and retaining current gamblers.” Compl. ¶ 94.
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`Facebook provides “App Ads [which] allow Illegal slot companies to target high spending users
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`and activate non-spending users.” Facebook Complaint ¶ 84. Facebook also “sends targeted ads
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`offering in-game rewards to users who invite their Facebook friends to play the [social casinos],
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`and provides online “tournaments” which “driv[es] . . . chip sales.” Facebook Complaint ¶ 80.
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`Google “aids in the design and direction of targeted advertising, both on Google.com, its larger
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`Display Network, and within other apps and platforms, all aimed at driving new customers to the
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`[social casinos] and retaining current gamblers.” Google Complaint ¶ 91.
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`D. Claims Asserted
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`Plaintiffs assert multiple claims against the Platforms. For instance, Plaintiffs pursue
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`comparable claims under California, Alabama, Georgia, Connecticut, Illinois, Indiana, Minnesota,
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`Mississippi, Missouri, New Mexico, New York, Ohio, and Oregon (among other states). These
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`claims are similar—Plaintiffs pursue claims under unfair competition laws, unjust enrichment,
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`Case Nos.: 5:21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENY ACT; SUA
`SPONTE CERTIFYING ORDER FOR INTERLOCUTORY APPEAL
`5
`
`Northern District of California
`
`United States District Court
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`

`

`Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 6 of 37
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`
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`illegal gambling and/or gambling loss laws. Importantly, the claims are asserted against the
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`Platforms themselves. For example, Count I alleges that by hosting Illegal Slots within the
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`meaning of California Penal Code § 330, Apple engaged in unfair competition within the meaning
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`of California Business and Professions Code § 17200 by committing unlawful, unfair and
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`fraudulent business acts and practices. See Compl. ¶¶ 148–71. Count II alleges, by hosting Illegal
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`Slots, Apple was unjustly enriched to the detriment of Plaintiffs and profited immensely by
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`providing marketing guidance, tools, and other assistances to the developers of social casinos and
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`retaining a percentage of the money spent by consumers in social casinos. See Compl. ¶¶ 172–78.
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`Count III alleges, by actively participating in the operation of social casinos by providing market
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`guidance and helping create and develop the social casinos, Apple violated Alabama Code § 8-1-
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`150(a). See Compl ¶¶ 179–86. Plaintiffs’ claims of unfair competition, gambling violations, and
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`unjust enrichment thus pursue the Platform’s individual acts, not the acts of third-parties.
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`II.
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`LEGAL STANDARD
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`“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
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`claim upon which relief can be granted tests the legal sufficiency of a claim.” Conservation Force
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`v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quotation marks and citation omitted). While
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`a complaint need not contain detailed factual allegations, it “must contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
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`facially plausible when it “allows the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged.” Id. When evaluating a Rule 12(b)(6) motion, the district court
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`is limited to the allegations of the complaint, documents incorporated into the complaint by
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`reference, and matters which are subject to judicial notice. See La. Mun. Police Emps.’ Ret. Sys. v.
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`Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
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`551 U.S. 308, 322 (2007)).
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`
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`Case Nos.: 5:21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENY ACT; SUA
`SPONTE CERTIFYING ORDER FOR INTERLOCUTORY APPEAL
`6
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`Northern District of California
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`United States District Court
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`

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`Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 7 of 37
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`III. DISCUSSION
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`The Platforms seek dismissal of the complaints filed against them without leave to amend,
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`arguing that they are immune from suit under Section 230 of the Communications Decency Act of
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`1996 (“CDA”), 47 U.S.C. § 230. See Apple Inc.’s Notice of Motion and Rule 12(b)(6) Motion to
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`Dismiss Based on Immunity Pursuant to Section 230 of the Communications Decency Act
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`(“Apple MTD”), Dkt. No. 92; Defendants Google LLC and Google Payment Corp.’s Motion to
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`Dismiss Master Complaint Under Section 230 of the Communications Decency Act (“Google
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`MTD”), Dkt. No. 69; Motion of Defendant Meta Platforms, Inc. to Dismiss Complaint Under
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`Section 230 of the Communications Decency Act (“Facebook MTD”), Dkt. No. 99. Plaintiffs
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`disagree, arguing that Section 230 of the CDA does not apply to the case at hand.
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`Section 230 of the CDA “protects certain internet-based actors from certain kinds of
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`lawsuits.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1099 (9th Cir. 2009). As relevant here, Section
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`230(c)(1) provides that “[n]o provider or user of an interactive computer service shall be treated as
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`a publisher or speaker of any information provided by another information content provider.” 47
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`U.S.C. § 230(c)(1). “No cause of action may be brought and no liability may be imposed under
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`any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). “The majority
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`of federal circuits have interpreted the CDA to establish broad federal immunity to any cause of
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`action that would make service providers liable for information originating with a third-party user
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`of the service.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118 (9th Cir. 2007) (quotation
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`marks and citation omitted).
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`By its terms, section (c)(1) ensures that in certain cases, an internet service provider is not
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`“treated” as the “publisher or speaker” of third-party content. Thus, Section 230’s grant of
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`immunity applies “only if the interactive computer service provider is not also an ‘information
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`content provider,’ which is defined as someone who is ‘responsible, in whole or in part, for the
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`creation or development of” the offending content. Fair Hous. Council of San Fernando Valley v.
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`Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (quoting 47 U.S.C. § 230(f)(3)). “The
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`Case Nos.: 5:21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENY ACT; SUA
`SPONTE CERTIFYING ORDER FOR INTERLOCUTORY APPEAL
`7
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`Northern District of California
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`United States District Court
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`

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`Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 8 of 37
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`prototypical service qualifying for [CDA] immunity is an online messaging board (or bulletin
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`board) on which Internet subscribers post comments and respond to comments posted by others.”
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`Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (alteration in original) (quoting
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`Kimzey v. Yelp! Inc., 836 F.3d 1263, 1266 (9th Cir. 2016)); see also Doe v. Internet Brands, Inc.,
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`824 F.3d 846, 850 (9th Cir. 2016) (“In general, [Section 230] protects websites from liability for
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`material posted on the website by someone else.”).
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`In Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009), the Ninth Circuit created a three-
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`prong test for Section 230 immunity. “Immunity from liability exists for ‘(1) a provider or user of
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`an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of
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`action, as a publisher or speaker (3) of information provided by another information content
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`provider.’” Dyroff, 934 F.3d at 1097 (quoting Barnes, 570 F.3d at 1100–01). “When a plaintiff
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`cannot allege enough facts to overcome Section 230 immunity, a plaintiff’s claims should be
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`dismissed.” Id.
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`Importantly, and as will be demonstrated below, to assess these factors, the court must
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`analyze how much control a website exercised over the offensive content. Practically speaking,
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`the second and third factor tend to overlap in significant ways. The question of whether a plaintiff
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`seeks to treat an interactive computer service as a publisher or speaker of third-party information
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`(the second Barnes element) interacts in obvious ways with the question of whether the
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`information provided is the information of a third-party (the third Barnes element). For instance,
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`in Fair Housing Valley Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th
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`Cir. 2008) (en banc), liability turned on the website’s prompts, which required users to create
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`profiles that violated the Fair Housing Act. The website was not behaving as a “publisher or
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`speaker” of third-party information, as it was publishing illegal content that it itself had elicited
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`from others. It is for this reason that the Court also looks to the third element of Barnes, even
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`while this action only concerns the second element of Barnes.
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`
`
`Case Nos.: 5:21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENY ACT; SUA
`SPONTE CERTIFYING ORDER FOR INTERLOCUTORY APPEAL
`8
`
`Northern District of California
`
`United States District Court
`
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`Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 9 of 37
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`To determine whether Section 230 immunity applies, this Court must decide whether
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`Plaintiffs’ theory of liability would treat the Platforms as a publisher or speaker of third-party
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`content. There is no dispute that prongs one and three are satisfied. Rather, Plaintiffs dispute the
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`applicability of the second prong and argue that the second prong is not applicable because
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`Plaintiffs seek to hold the Platforms liable for their own conduct.
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`A. The History of Section 230 CDA Immunity
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`Title V of the Telecommunications Act of 1996, Pub. L. No. 104-104, is known as the
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`“Communications Decency Act of 1996” (the “CDA” or “the Act”). Its primary purpose was to
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`“reduce regulation and encourage the rapid deployment of new telecommunications technologies.”
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`Reno v. Am. Civil Liberties Union, 521 U.S. 844, 857 (quotation marks omitted).
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`Section 230 was first offered as an amendment by Representatives Christopher Cox and
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`Ron Wyden (i.e., the “Cox-Wyden Amendment”). See 141 Cong. Rec. H8460-01 (Aug. 4, 1995).
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`The primary goal of the amendment was to control the exposure of minors to indecent materials,
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`specifically pornography, by immunizing interactive service providers that voluntarily censor
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`offensive content posted on their sites. Id. It is for this reason that Section 230(c), the section of
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`the amendment at issue, provides protection for “good Samaritan” blocking and screening of
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`offensive material. See 47 U.S.C. § 230(c) (entitled “Protection for ‘Good Samaritan’ Blocking
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`and Screening of Offensive Material”). Pursuant to 47 U.S.C. § 230(c)(2):
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`No provider or user of an interactive computer service shall be held
`liable on account of—
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`(A) any action voluntarily taken in good faith to restrict access to or
`availability of material that the provider or user considers to be
`obscene, lewd, lascivious, filthy, excessively violent, or otherwise
`objectionable, whether or not such material is constitutionally
`protected; or
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`(B) any action taken to enable or make available to information
`content providers or others the technical means to restrict access to
`material described in paragraph (1).
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`Case Nos.: 5:21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENY ACT; SUA
`SPONTE CERTIFYING ORDER FOR INTERLOCUTORY APPEAL
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`Northern District of California
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`United States District Court
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`Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 10 of 37
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`By its plain language, Section 230 creates a federal immunity to any cause of action that
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`would make service providers liable for information originating with a third-party user of the
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`service. Specifically, Section 230 precludes courts from entertaining claims that would place an
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`interactive service provider in a publisher’s role. A lawsuit that seeks to hold a provider liable for
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`its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish,
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`withdraw, postpone, or alter content—are barred. This advances three purposes: protecting
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`freedom of speech on the Internet, removing disincentives to voluntary private censorship, and
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`encouraging the development of Internet commerce generally. See Holomaxx Techs. v. Microsoft
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`Corp., 783 F. Supp. 2d 1097, 1103 (N.D. Cal. 2011) (“A principal purpose of the CDA is to
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`encourage interactive service providers to engage in effective self-regulation of certain content.
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`The Ninth Circuit has recognized that § 230 of the statute is ‘designed . . . to promote the free
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`exchange of information and ideas over the internet and to encourage voluntary monitoring for
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`offensive and obscene material.’” (quoting Barnes, 570 F.3d at 1099–1100)); see also Green v.
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`Am. Online (AOL), 318 F.3d 465, 472 (3d Cir. 2003) (“Section 230(c)(2) does not require AOL to
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`restrict speech; rather it allows AOL to establish standards of decency without risking liability for
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`doing so.”); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Force v. Facebook Inc.,
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`934 F.3d 53, 76 (Katzmann, C.J., concurring in part, dissenting in part) (analyzing the history of
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`Section 230 and concluding that Section 230(c)(1) need not be interpreted to immunize websites’
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`friend-and content-suggestion algorithms).
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`The legislative history of the Cox-Wyden Amendment makes clear that Congress enacted
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`section 230 to remove the disincentives to self-regulation created by a New York state court
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`decision, Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24,
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`1995). There, the plaintiffs sued Prodigy, an interactive computer service provider, for
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`defamatory comments made by an unidentified party on one of Prodigy’s bulletin boards. The
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`Court held Prodigy to the strict liability standard normally applied to original publishers of
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`defamatory statements, reasoning that Prodigy acted more like an original publisher than a
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`Case Nos.: 5:21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENY ACT; SUA
`SPONTE CERTIFYING ORDER FOR INTERLOCUTORY APPEAL
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`Northern District of California
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`United States District Court
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`Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 11 of 37
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`distributor both because it advertised its practice of controlling content on its service and because
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`it actively screened and edited messages posted on its bulletin boards.
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`The Cox-Wyden Amendment sought to remove the disincentives to self-regulation created
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`by the Stratton Oakmont decision. See 141 Cong. Rec. H8460-01 at 8469 (Aug. 4, 1995) (“Mr.
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`Chairman, [the Stratton Oakmont] is backward. We want to encourage people like Prodigy . . . to
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`do everything possible for us, the customer, to help us control, at the portals of our computer, at
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`the front door of our house, what comes in and what our children see.”). Fearing that the specter
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`of liability would deter service providers from blocking and screening offensive material,
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`Congress enacted Section 230’s broad immunity “to remove disincentives for the development
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`and utilization of blocking and filtering technologies that empower parents to restrict their
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`children’s access to objectionable or inappropriate online material.” 47 U.S.C. § 230(b)(4).
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`Section 230 also recognizes that interactive computer services offer a “forum for true diversity of
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`political discourse, unique opportunities for cultural development, and myriad avenues for
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`intellectual activity.” Id. § 230(a)(1). It is the goal of Section 230 to preserve allow this “vibrant
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`and competitive free market” to develop “unfettered by Federal or State regulation.” Id.
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`§ 230(b)(2).
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`Section 230 advanced an additional interest: to eliminate any chilling effect that tort
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`liability would have on interactive service providers. Interactive computer services have millions
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`of users. An immense amount of information is thus both posted and communicated on interactive
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`sites. The imposition of tort liability would chill, if not eliminate, interactive service providers. It
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`would be impossible for service providers to screen each of their millions of postings for possible
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`problems. Zeran, 129 F.3d at 331. Such a responsibility would likely cause interactive service
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`providers to severely restrict the number and type of messages posted, something that the CDA is
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`expressly against. See Reno, 521 U.S. at 857 (“[The Act’s] primary purpose was to reduce
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`regulation and encourage the rapid deployment of new telecommunications technology.”
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`(quotation marks omitted)). In enacting Section 230, Congress chose to immunize service
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`Case Nos.: 5:21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENY ACT; SUA
`SPONTE CERTIFYING ORDER FOR INTERLOCUTORY APPEAL
`11
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`Northern District of California
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`United States District Court
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`

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`Case 5:21-cv-02777-EJD Document 119 Filed 09/02/22 Page 12 of 37
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`providers to avoid any restriction of interactive computer service providers’ passive hosting of
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`third-party speech. Accordingly, Section 230 sought to accomplish two objectives. Its broad
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`grant of immunity both reduces obscenity on the Internet, by incentivizing service providers to
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`review third-party content without fear of retribution, and precludes government censorship, by
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`expressly barring service providers to be held liable for the speech of another. See Batzel, 333
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`F.3d at 1027–28.
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`B. Analysis of Section 230 CDA Immunity
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`The dispositive question in this case is whether the Platforms were “publishers or
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`speakers” within the meaning of 47 U.S.C. § 230(c)(1). As established, through section 230,
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`Congress granted most Internet services immunity from liability for publishing third-party
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`material. To understand the boundaries of this immunity, the Court reviews several cases that
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`have wrestled with the applicability of section 230 immunity. In doing so, the Court examines the
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`motivations of section 230 and how these motivations interact with the holdings of this Circuit’s
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`case law. While this review is lengthy, it is important to understand how section 230 has evolved
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`and whether it applies to the facts of this case. There is no doubt that the Internet of 1996, which
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`boasted platforms that hosted “bulletin board” type websites, has changed. In examining this
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`Circuit’s case law, the Court attempts to understand the evolution of section 230 precedent and
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`how that precedent has responded to the rapid and unforeseen changes to the Internet.
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`1. Batzel v. Smith
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`In Batzel v. Smith, the defendant, Ton Cremers, ran the Museum Security Network, which
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`maintained a website and distributed an email newsletter via Listserv software. 333 F.3d 1018
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`(9th Cir. 2003) superseded in part by statute on other grounds as stated in Breazeale v. Victim
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`Servs., Inc., 878 F.3d 759, 766–67 (9th Cir. 2017). A handyman, Robert Smith, worked for Ellen
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`Batzel at her home. Id. at 1020. Batzel told Smith that she was the granddaughter of one of Adolf
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`Hitler’s right-hand men. Id. at 1020–21. Batzel also told him that the paintings in her home were
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`inherited. Id. at 1021. After “assemb