Here is a recent case that is interesting because the court applied Section 230 to a situation (as far as this author knows) in which Section 230 has not been applied before – the Clean Air Act.
The Clean Air Act makes it illegal for a person, including a company, “to manufacture or sell” a “part or component intended for use with … any motor vehicle” if “a principal effect” of the part or component is to “defeat” emissions controls “and where the person knows or should know” that it is “put to such use.” 42 U.S.C. § 7522(a)(3)(B).
And we know that our old friend Section 230 – a part of the Communications Decency Act (47 U.S.C. § 230(c)(1)) – commands that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This works to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.
Defendants’ product was used to defeat emissions testing
In the case of United States v. EzLynk Sezc, 2024 WL 1349224 (S.D.N.Y., March 28, 2024), the federal government filed suit over the sale of the “EZ Lynk System.” The system was comprised of three parts – hardware that would connect to a car to reprogram its software used in emissions testing, a cloud based service where users could upload “delete tunes” – software that was used to defeat the emissions control software, and a mobile app to coordinate the hardware and the cloud based software.
Defendants moved to dismiss, arguing that it was immune under Section 230. The court granted the motion.
Section 230 immunity
The court noted that to satisfy the test for immunity: (1) the defendant must be a provider or user of an interactive computer service; (2) the claim must be based on information provided by another information content provider; and (3) “the claim would treat the defendant as the publisher or speaker of that information. It found that all three of these elements were met.
The system was an interactive computer service
On the question of whether defendants provided an interactive computer service, the court rejected the government’s suggestion that Section 230’s immunity was limited to social media platforms. “Software is information, albeit presented in code. The Complaint alleges the EZ Lynk Cloud is a platform on which people exchange information in the form of software. . . . Thus, according to the government’s own account of the nature of an interactive computer service, the Complaint alleges that the EZ Lynk Defendants provide an interactive computer service.”
Claim based on information provided by third parties, of which defendants were not the speaker
Seeking to avoid Section 230 immunity, the government sought to hold defendants liable for their own conduct. It claimed defendants were themselves information content providers who bore responsibility for the creation and installation of the delete tunes. But the court looked to the language of the complaint itself that expressly alleged that the delete tunes were created by third party companies and individuals. And the court found it could not infer from the allegations in the complaint that defendants collaborated with the third party software providers who uploaded the delete tunes. The court likewise rejected the government’s assertions that defendants’ technical support online communications and social media activity contributed to any misconduct on the part of defendants.
United States v. EzLynk Sezc, 2024 WL 1349224 (S.D.N.Y., March 28, 2024)
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