Herrick V. Grindr – The Section 230 Case That's Not What You've Heard

from the pleading-matters dept

On the surface Herrick v. Grindr seems the same sort of case as Daniel v. Armslist (which we wrote about last week): it's a case at an appeals court that addresses the applicability of Section 230, meaning there is a reasonable possibility of it having long-lingering effect on platforms once it gets decided. It's also a case full of ugly facts with a sympathetic plaintiff, and, at least nominally, involves the same sort of claim against a platform – in Armslist the claim was for "negligent design," whereas here the claim is for "defective design." In both cases the general theory is that because people were able to use the platform to do bad things, the platforms themselves should be legally liable for the resulting harm.

Of course, if this theory were correct, what platform could exist? People use Internet platforms in bad ways all the time, and they were doing so back in the days of CompuServe and Prodigy. It is recognition of this tendency that caused Congress to pass Section 230 in the first place, because if platforms needed to answer for the terrible things their users used them for, then they could never afford to remain available for all the good things people used them for too. Congress felt it was too high a cost to lose the beneficial potential of the Internet because of the possibility of bad actors, and so Section 230 was drafted to make sure that we wouldn't have to. Bad actors could still be pursued for their bad acts, but not the platforms that they had exploited to commit them.

In this case the bad act in question was the creation and management of a false Grindr profile for Herrick by an ex-boyfriend bitter about their breakup. It led to countless strangers, often with aggressive expectations for sex, showing up at Herrick's home and work. There is no question that the ex-boyfriend's behavior was terrible, frightening, inexcusable, and, if not already illegal under New York law, deserving to be. But only to the extent that such a law would punish just the culprit (in this case the ex-boyfriend who created the fake profile).

The main problem with this case is that Herrick is seeking to have New York law extend to also punish the platform, which had not created the problematic content. But the plain language of Section 230 – both in its immunity provision along with its pre-emption provision – prevents platforms from being held liable for content created by others. Herrick argues that Grindr should be held liable anyway "because it knowingly facilitated criminal and tortious conduct." But that's not the standard. The standard is whether the platform created the wrongful content, or, at minimum, in the wake of Roommates, had a hand in imbuing it with its wrongful quality. But here there is no evidence to suggest that Grindr had anything to do with the creation of the fake profile. It was the awful ex-boyfriend who was doing all the malfeasant content supplying.

But here's where the two cases part company, and where the Grindr one gets especially messy. The good news for Section 230 is that this messiness may make it easy for the Second Circuit to resolve in favor of Grindr and leave Section 230 unscathed. The bad news is that if the Second Circuit decides the other way, it will be very messy indeed.

One of the core questions in most lawsuits involving Section 230 is whether the platform itself is an interactive computer service provider, and thus protected by Section 230 for lawsuits seeking to hold them liable for content created by others, or whether it is instead a non-immune "information content provider." Part of the problem with this case is that when Herrick filed the lawsuit originally, the pleading acknowledged that it was an interactive computer service provider. Later when he was fighting the motion to dismiss he changed its mind, but that's a problem. You don't usually get to change your mind about these critical elements of your complaint without repleading it. (Which is one of the reasons Herrick is appealing; the dismissal was "with prejudice," meaning it wouldn't easily be able to re-plead at this point, and Herrick wants another chance to amend his complaint.)

But that's only one of the pleading problems. A plaintiff also has to put forth a plausible theory of liability at the outset, in large part so that the defendant can be on notice of what it is being accused of to defend itself. It's not unusual for theories of liability to evolve as litigation proceeds, but if the theory changes too much too late in the process it raises significant due process problems for the defendant. Which seems to be happening here. The story Herrick told the Second Circuit about why it thought Grindr should be liable for the harm Herrick suffered differed in significant ways from the story it had told at the outset, or to the trial court. This change is one reason why the case is particularly messy, and may be messier still if the Second Circuit allows it to continue anyway.

At issue is what Herrick told the Second Circuit about his harassment. According to him now, strange men were showing up in his life not just constantly but everywhere he went. Yet according to the record at the trial court, they only showed up in two places: his home and his work. Which is not to say, of course, that it's ok for him to have these people harass him at either place (or any place). The issue is that this "everywhere" v. "only in two places" distinction significantly affects his theory of the case and therefore the merits of his appeal.

Because the argument he pressed at oral argument was that it was Grindr's geolocation service that removed the case from Section 230's purview. According to him there must be some bug in Grindr that allows these strange men to know where he is and seek him out, and so, he thinks, Grindr should be liable for not fixing this defect.

However there are a number of problems with this theory. First, it is highly implausible. For it to be true Grindr would need to not only still be tracking him (even as an ex-user) but then, for some unknown reason, somehow unite the location data of the actual Herrick person with the fake Herrick profile. Herrick tried to argue that the first part was likely, citing for instance Google's location services continuing to track users after they'd thought it had stopped. But even if it were true that Grindr had continued to track him, it would be really random to associate that data with any other account he didn't control. From Grindr's point of view, his real account and the fake account would look like two completely separate users. Sure, Grindr could have a bug that mis-associated location data, but there's no reason for it to pick these two completely different accounts to merge the data from. It would be just as arbitrary as if it mixed up his data with any other Grindr account.

Furthermore, there is zero evidence to suggest that the fake account used the geolocation data of anyone at all, other than perhaps the ex-boyfriend, who was operating the account. There certainly is no evidence to suggest that it was somehow using Herrick's actual data, and that's why the factual distinction about where he was harassed matters. If it truly was everywhere then he might have a point about the app having a vulnerability, and if so then perhaps his defective design claim might start to be colorable. But the only information he's alleged is that he was harassed in those two places, home and work, and no one needed to use any geolocation data to find him at either of these places. The ex-boyfriend knew of these places and could easily send would-be suitors to them directly via private messages. In other words, the reason they turned up at either of these places was because of content supplied by a third party (the ex-boyfriend). This fact puts the case clearly in Section 230-land and makes the case one where someone is trying to hold a platform liable for harm caused by how another communicated through their system.

Finally, an additional problem with this theory is that even if it were correct, and even if there were some evidence that the geolocation was allowing strangers to harass him everywhere, it needed to have come up before the appeal. The purpose of the appeal is to to review whether the first court made a mistake. Belatedly supplying more information for the benefit of the appeals court will not help it decide whether the first court made a mistake because that court could only have done the best it could with the information available to it. It isn't a mistake not to have had the benefit of more, and to add more at this late date would be incredibly unfair to the defendant. As it was, by pressing this new "he was tracked everywhere" theory at oral argument it left Grindr's counsel in the unenviable and risky position of having to field extremely hypothetical questions from the judges about their client's potential liability based on facts nowhere in the underlying record. It was uncomfortable to listen to the judges push Grindr's lawyers on the question of whether some hypothetical software bug that they had never contemplated, and likely doesn't exist, might undermine their Section 230 protection. To their credit they fielded the hypo on the fly pretty well by reminding the judges that Section 230 covers how platforms are used by other people, regardless of whether they are used appropriately or exploitatively. But given the way this case was pleaded from the outset, this hypo should never have come up, especially not at this late juncture.

So one of the overarching concerns about this case is that because this theory did not coalesce until it had reached the appeals court, it left the central legal questions it raised under-litigated, thus inviting poor results if the Second Circuit now gives them any credence. But that's not the only concern. It may still be an ominous harbinger, for even if Herrick loses the appeal, it may not be the last time we see this "software vulnerability makes you lose Section 230 protection" theory put forth. It foreshadows how we may see future privacy litigation wrapped-up as defective design cases, and, worse, it may encourage plaintiffs seeking to do an end-run around Section 230 to try to package their claims up as privacy cases.

Also, what Herrick asked for in his appeal was a remand back to the trial court to explore all these under-developed evidentiary issues. Was there a software bug? Was Grindr continuing to track former subscribers in a way they didn't know about? Was there a privacy leak, where the fake profile was somehow united with the geolocation of a real person? Herrick believes the case shouldn't have been dismissed without discovery on these issues, but early dismissal is a big reason why Section 230 provides valuable protection to a platform. It is extremely expensive to go through the discovery stage – in fact, it's often the most expensive stage – and if platforms had to endure it just so plaintiffs could explore paranoid fantasies with no evidence to give them even a veneer of plausibility, it will be extremely destructive to the online ecosystem.

On the upside, however, unlike the Wisconsin Court of Appeals in the Armslist case, after listening to the oral argument I'm relatively confident that the judges will be able to respect prior precedent upholding Section 230, even in these awful cases, and resist reaching an emotional conclusion that strays from it. Also, given the issues with the pleading and such – which at oral argument the judges flagged – there may be enough procedural problems with Herrick's case to make it easy for the court to dispense with it without causing damage to Section 230 jurisprudence in the Second Circuit in the process. But if these predictions turn out to be wrong, and if it turns out that these procedural issues pose no obstacle to the court issuing the remand Herrick seeks, then we might have to contend with something really ugly on the books at a federal appellate circuit level.

Filed Under: cda 230, intermediary liability, section 230
Companies: grindr


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  • icon
    Mason Wheeler (profile), 22 Jan 2019 @ 3:34pm

    Not sure about 230 specifically, but I can definitely see a valid negligence claim here. If the site, which is specifically a hookup site where people go to look for sex, allowed someone to set up a profile for someone else, without doing any due diligence to verify that the person setting up the profile is in fact the person featured in the profile, well... the potential for malicious actors to abuse this to sexually assault somebody by proxy ought to have been obvious from the beginning.

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    • identicon
      Anonymous Coward, 22 Jan 2019 @ 3:54pm

      Re:

      And just how do you propose that they do that, while also allowing thousands, or tens of thousands of new registrations a day.

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      • identicon
        Anonymous Coward, 23 Jan 2019 @ 5:20am

        Re: Re:

        Oh, look, it's the global-warming-denier defense! "This problem is too big to do anything about without requiring some hard choices and real sacrifice, so let's just pretend it doesn't exist."

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      • icon
        Mason Wheeler (profile), 23 Jan 2019 @ 7:18am

        Re: Re:

        Well, when I signed up for the dating site where I ended up meeting my wife, they had a number of verification measures in place to make sure I was who I said I was, for the protection of their (thousands or tens of thousands of) users. I can only assume that a sex hookup site is very similar in technical execution, if not in character, so I don't see any reason why this should be an insurmountable problem.

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        • identicon
          Anonymous Coward, 23 Jan 2019 @ 11:45am

          Re: Re: Re:

          How easy would it be for your wife to fake her way through the verification that you had to go through?

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        • icon
          Ninja (profile), 24 Jan 2019 @ 3:46am

          Re: Re: Re:

          I kind of agree with you. But instead of making registration harder you could restrict functionality to accounts until they are verified. It may lead to some awaiting but I believe people would be willing to wait for the added security layer.

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          • identicon
            Anonymous Coward, 24 Jan 2019 @ 4:34am

            Re: Re: Re: Re:

            Who pays for the people needed to carry out the verification?

            Also, I presume that Grindr only gives out an electronic contact, or passes on electronic messages, so that its users can decide whether or not to arrange a real world meeting.

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    • identicon
      Stephen Hutcheson, 22 Jan 2019 @ 4:09pm

      Re:

      ... and Henry Ford, why aren't we exhuming him for all the potential for malicious use of the internal combustion engine? Any imaginative person could think of all SORTS of ways, not to badmouth a person but to downright KILL or MAIM them, with an automobile! Not to mention drug smuggling, crossing state lines to commit other felonies!

      And the manufacturers advertise automobiles on TV, sell them in every town city and medium-size village in the country without EVER checking back to see how they're used!

      The police waste so much time tracking down actual perpetrators when they could just sue the nearest automobile manufacturer.

      And printing presses--the potential for malicious use is almost unlimited. It ought to be a crime to sell, possess, transport, repair, or craft such a device.

      And finally, why is anyone wasting time on internet servers when the same logic could allow so many other industries, with so much more serious potential for malicious use, to be prosecuted, suppressed, and forced underground?

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      • identicon
        Anonymous Coward, 23 Jan 2019 @ 5:09am

        Re: Re:

        Distributor liability for defamation is well-established, and 230 has yet to be tested in the Supreme Court. No other country has it.

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        • identicon
          Anonymous Coward, 23 Jan 2019 @ 11:18am

          Re: We all know you can’t “perform” in front of a “court

          Do it Jhon boy. Stop being all talk and no action.

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    • icon
      Stephen T. Stone (profile), 22 Jan 2019 @ 4:24pm

      Re:

      without doing any due diligence to verify that the person setting up the profile is in fact the person featured in the profile

      The question, then, becomes this: What does “due diligence” mean in this situation, and how far would Grindr need to go before its “due diligence” is considered “done”?

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      • identicon
        Anonymous Coward, 22 Jan 2019 @ 8:49pm

        Re: Re:

        -Add multiple factors of authentication and verification involving phone number, email address, credit card, etc.
        -Allow for users of the app to report fake accounts or conversely confirm that the person is who he says he is, or that the account is in fact being run by that person.
        -Enable people to, based off of positive confirmations and authentication factors, become verified users with a checkmark or something else next to their name.

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        • icon
          Stephen T. Stone (profile), 22 Jan 2019 @ 9:54pm

          • This raises numerous privacy/data retention concerns. If someone hacks an account (or, God forbid, Grindr’s entire database), all that information could be leaked.

          • This raises the possibility of people filing knowingly false reports.

          • I hope I do not need to go into how “verifying” someone on an app that has been routinely used to expose gay men and make them targets for harassment/violence is a bad thing.

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          • icon
            That Anonymous Coward (profile), 23 Jan 2019 @ 3:31am

            Re:

            but but but the lawsuit even talks about the website that tracks the top 25 horrible things to happen on the app!!!!

            A 13 yr old hooking up with men!!!
            A serial killer who acted out his demented fantasies!!

            Except these things can happen with or without apps.

            But but but we can all whip out our super duper Purple Mafia Friend of Dorothy Decoder Ring to confirm we are teh gay we claim we are.

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          • icon
            Mason Wheeler (profile), 23 Jan 2019 @ 7:20am

            Re:

            I hope I don't need to go into how not verifying someone made this gay man a target for harassment and violence. I shouldn't have to, as it is the entire point of the article. If you're going to raise points like that, try making sure they're not equally valid for both sides of the debate first.

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            • identicon
              Anonymous Coward, 23 Jan 2019 @ 7:32am

              Re: Re:

              I hope I don't need to go into how not verifying someone made this gay man a target for harassment and violence.

              More like an ex partner targetted him for harassment and violence. Did you not notice that first contact was with the person who set up the account, and who then sent people who contacted him to his ex partner.

              Grindr sent contacts to the person who set up the account, and not to the person being harassed. and presumably confirmed that the person setting up the account had control of the means of contact.

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              • identicon
                bob, 23 Jan 2019 @ 3:27pm

                Re: Re: Re:

                This same result could have happened if the ex had used a classified ad in the newspaper or written the info on a public available bathroom stall wall. The fact that the ex did this using Grindr only shows that the ex thought it would be the most effective means of harassment.

                Now if Grindr had requested people use its app for this purpose than they would be complicit in the crime.

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          • icon
            Ninja (profile), 24 Jan 2019 @ 4:11am

            Re:

            1- true, but you could take some steps to verify and then purge the documents possibly. And you can verify people with just enough data (and possibly a live chat).

            2- You can set parameters to make certain reports go to human verification. Ie: recently created accounts would just be suspended unless the user actively asks for review, verified accounts and those above a certain age/activity would go through a human at all times.

            3- You do have a point but it could be done while respecting the user privacy and even allowing pseudonyms.

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      • icon
        Wendy Cockcroft (profile), 24 Jan 2019 @ 5:58am

        Re: Re:

        Shouldn't at least some of the responsibility for personal security be on the hookup seekers? This story cements the impression I've always had of hookup sites; that they're dodgy as hell and only desperate people who can't find partners in the real world use them.

        I mean, imagine you're one of the weirdos who chased this Herrick chap around: what if he was more dodgy than you?

        I agree with Mason. If we're going to outsource personal security to third parties they should indeed restrict access to meetup features to verified users. Verification should include background checks to keep the sort of crazies who chase random strangers around aggressively demanding sex because of a message on a hookup app very firmly out. Inconvenient? Yes, but a great deal safer for all concerned. If you can't be good, at least be careful.

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    • icon
      That Anonymous Coward (profile), 23 Jan 2019 @ 2:53am

      Re:

      *drop the large pile of caselaw where stalkers sent men to ex gf's or just objects of their obsession's door for the 'rape fantasy' sex they really really wanted*

      By your standard rental car companies should be liable for not running deep background checks to make sure a renter didn't have a history of drunk driving convictions when he gets hammered and runs over a family of Mormons.

      Everyone wants to hold tech responsible for not "Bandersnatching" (sue me choose your own adventure) every single possible option someone might take.

      Would you like to have to tick a box for every item you purchase promising to not use them in a list of 1000's of possible bad outcomes?

      There is no magic duty for a 3rd party in this case to divine the intentions of every account creator and invest tens of thousands to make sure it really is a horny guy just wanting to get laid & not a bad actor.

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        identicon
        Anonymous Coward, 23 Jan 2019 @ 5:13am

        Re: Re:

        Actually there is such a duty that 230 is trying to override.

        Cases like this show why 230 is doomed. A rental car with a sniper hole in the back could easily cause its manufacturer to be sued.

        As for who That AC is, anyone with an IQ over 20 should be able to figure that out.

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      • identicon
        Bruce C., 23 Jan 2019 @ 7:29am

        Re: Re:

        This kind of liability (or at least risk of being sued) is one of the reasons why rental car companies put a hold on your credit/debit card and require proof of insurance/drivers license. A series of drunk driving convictions would result in suspended or revoked drivers license.

        Requiring a credit card number (or paypal/stripe account) would probably help a little bit without too much pain on the company. A perp would have to defraud the site by providing a bogus number, or compound their identity theft by providing the victims CC number. If the site also charges an "initiation fee" to the card, that would alert the victim that their card was being used (and filter out fakes as well).

        Section 230 protects against liability for user-created content. It will be interesting to see if it's interpreted to provide blanket protection against liability for user identity theft. The creation of a fake profile can be interpreted as "content" or "identity theft" depending on how you look at it.

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        • icon
          That Anonymous Coward (profile), 23 Jan 2019 @ 8:03am

          Re: Re: Re:

          "A series of drunk driving convictions would result in suspended or revoked drivers license."

          *looks at the guy with 13 DUI arrests who somehow still had his license*

          Doesn't always work & making sure the DL is valid is 1 thing, paying for a deep dive into who the person is & their history is another.

          And for people who don't have a credit card?
          Or for people who don't think they really want a credit agency to have a data point suggesting they enjoy gay sex?
          I mean it isn't like that information can be used to change insurance rates or desire to cover someone.

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      identicon
      Anonymous Coward, 23 Jan 2019 @ 5:08am

      Re:

      230 bars ALL state-law third-party claims as well as federal laws that are not criminal, such as Fair Housing.

      230 has never been decided by our Supreme Court, and the law never exempted DISTRIBUTOR liability (the absence of the word carries weight with the SCOTUS). The only SCOTUS ruling on 230 had to do with the entire CDA, not the interpretation of 230.

      A man being harassed by thousands of men visiting him at home and work expecting sex should put to rest any notion that 230 doesn't harm people. The law is toxic and cases like this (or the revenge porn cases) merely prove it.

      This is another Masnick temper tantrum that will grow louder as his side loses, and they're gonna lose BIG here. As for his own stake in this outcome, I'll refrain from commenting here. Online reviews of about 10-20 lawyers who make up the pro-230 echo chamber, connecting them various other internet types, will suffice just fine. Then they cfan defend the rights of the review sites to keep the negative reviews of their firms.

      One lawyer who claims to support free speech managed to get a Ripoff Report removed. That was hysterically ironic. No defamation lawsuit was filed over the review even against the original publisher. Imagine that.

      A big journalistic hammer is going to drop one day on this crap. Just not here. Simple matter of time at this point.

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      • icon
        Stephen T. Stone (profile), 23 Jan 2019 @ 8:54am

        Re: Re:

        A man being harassed by thousands of men visiting him at home and work expecting sex should put to rest any notion that 230 doesn't harm people.

        NARRATOR: It didn’t.

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      • identicon
        Anonymous Coward, 23 Jan 2019 @ 9:16am

        Re: Re:

        Agreed. And the issue is that with so many defenders of 230 saying it harms absolutely no one, it'll be hard for us to argue that it's a good thing.

        I think the benefits to 230 outweigh the costs, but I fully expect to see it gutted as people react to the abuses, and then see the defenders arguing that it's not really an abuse.

        Why should anyone take us seriously?

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        • icon
          Stephen T. Stone (profile), 23 Jan 2019 @ 9:34am

          Any abuse that occurs on a platform or service such as Grindr is an abuse of the platform, not of Section 230. Anyone who abuses the platform without the knowledge or aid of that platform’s owners/operators should be held liable for their abuse without having their liability transfered to said owners/operators. If you believe either of these propositions should not stand, you’ll have to present one hell of a better argument than [checks notes] “nuh-uh to your uh-huh”.

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          • identicon
            Anonymous Coward, 23 Jan 2019 @ 9:56am

            Re:

            Reread what I said. I support section 230, since the alternatives are worse.

            The internet we know simply can not exist without section 230. If anyone can be held liable for anything anyone does with their platforms, then the free and open internet will die. This makes defending section 230 very, very important.

            I also can't possibly imagine that Herrick is going to agree on that point right now, and frankly, arguing that this is not proof that section 230 causes real harms, and is open to abuse, is going to convince a lot of people that we, the supporters of section 230 are full of shit, and they won't listen to anything we have to say.

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            • icon
              Stephen T. Stone (profile), 23 Jan 2019 @ 10:15am

              Re: Re:

              Then this is what you tell those people:

              Any abuse that occurs on a platform or service such as Grindr is an abuse of the platform, not of Section 230. Anyone who abuses the platform without the knowledge or aid of that platform’s owners/operators should be held liable for their abuse without having their liability transfered to said owners/operators.

              Then you explain that we don’t sue car manufacturers for the actions of drunk drivers, bank robbers, and assholes who run red lights for damn near the exact same reasoning. If they still refuse to consider this proposition (or listen at all), that is their problem.

              I feel bad for the guy at the center of all this bullshit. What happened to him was awful, and I hope proper justice can be done in the future. But proper justice in this case is not “sue Grindr” (and, by proxy, “attack Section 230”).

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            • icon
              That One Guy (profile), 23 Jan 2019 @ 10:17am

              Re: Re:

              I also can't possibly imagine that Herrick is going to agree on that point right now, and frankly, arguing that this is not proof that section 230 causes real harms, and is open to abuse, is going to convince a lot of people that we, the supporters of section 230 are full of shit, and they won't listen to anything we have to say.

              First they'd need to demonstrate that the cause of the problem was 230, not an asshole of an ex, and until that link is established people would be fully justified in refusing to buy that this is an example of the 'real harms' of 230 and how it's 'open to abuse'.

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        • icon
          That One Guy (profile), 23 Jan 2019 @ 10:12am

          Re: Re: Re:

          Agreed. And the issue is that with so many defenders of 230 saying it harms absolutely no one, it'll be hard for us to argue that it's a good thing.

          I'm not sure about you, but personally I don't think I've ever seen anyone saying that 230 doesn't have the potential to cause occasional problems, it's just that most of them seem to have the same position you do, in that it prevents a whole lot more.

          I think the benefits to 230 outweigh the costs, but I fully expect to see it gutted as people react to the abuses, and then see the defenders arguing that it's not really an abuse.

          'Abuses of 230' strikes me as very similar to people arguing that someone is 'abusing the first amendment' because they're being a jerk about what they say. The entire purpose of the thing is to shield platforms from liability for the actions of others, such that what people in lawsuits/pointing to lawsuits like the one covered here would call 'abuse' I'd call 'working as intended'.

          It's meant to keep people from going the easy/profitable route and going after the easy/rich target, forcing them to go after the actual guilty party and hold them responsible, and companies saying 'we're not responsible for content/actions we didn't make/do, go after those that are' is not abuse, it's a proper application of the law and responsibility.

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      • identicon
        Anonymous Coward, 23 Jan 2019 @ 11:20am

        Re: Re:

        “temper tantrum that will grow louder as his side loses” he cried hysterically for the fourth time that day.

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      • identicon
        Anonymous Coward, 23 Jan 2019 @ 11:27am

        Re: Re:

        So we’ve moved from multiple local, state, and federal police investigations. To threatening massive lawsuits. To “Oh ima expose so much dirt on Mike you don’t even know.” And now we’re at “someday someone is gonna say something mean about TD.” What’s next “I’m telling?”

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      • icon
        nasch (profile), 23 Jan 2019 @ 2:50pm

        Re: Re:

        A man being harassed by thousands of men visiting him at home and work expecting sex should put to rest any notion that 230 doesn't harm people.

        Why, because without 230 Grindr couldn't exist? What is the difference between saying section 230 harms people and issuing driver's licenses harm people (because without them people wouldn't be allowed to drive and so couldn't crash into others)? Or that the 1st Amendment harms people (because it enables people to say hurtful things without fear of government reprisal)? By your standards it would seem that any liberty harms people, because it can be misused. Is that your position? If not, what is so different about section 230?

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    • identicon
      Anonymous Coward, 23 Jan 2019 @ 9:20am

      Re:

      According to other stories on the topic, he complained to Grindr repeatedly. I could see a negligence claim arising from that depending on what happened there.

      It doesn't sound like the course he's pursuing though, so although possible, it's an irrelevancy to the case at hand.

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 23 Jan 2019 @ 9:59am

        Re: Re:

        He and his friends sent messages claiming the account was fake.
        We don't know where they sent them or if he failed to read replies.

        In recent history we have Tiffany who sued Twitter & most of the planet for trillions of dollars because they DARED to make her prove her claim that she was who she claimed she was before they would take action against an account impersonating her... and that took 2 days and in that time her entire life was threatened by ISIS or some shit so she needed millions to be safe.

        He claims 14 police reports & a motion for a protective order but provides no information in the complaint about where those lead. 14 police reports - did they all reference that this was being directed by the evil ex? Or was it 14 complaints about the really pushy guys who refused to leave?

        Why did he leave a required party off of the case??
        As far as I know, do correct me if I am wrong, he brought no actions against the evil ex & got a ruling he was behind it. This seems to be Grindr has a deep pocket & evil ex has no cash and I like cash so lemme sue them.

        That Adam Steinbaugh character used to report my tweets to the FBI twitter account... I doubt that counts as repeatedly complaining about me.

        reply to this | link to this | view in chronology ]

        • icon
          Wendy Cockcroft (profile), 24 Jan 2019 @ 6:03am

          Re: Re: Re:

          Steinbaugh? Far to the right of Kubla Khan, that one.

          Could Herrick be going after Grindr because they have money and his ex doesn't? Maybe he's merely misguided, blaming them for enabling his ex but if he complained to them and they did nothing I agree he's got a case.

          It all hinges on whether or not he complained to Grindr and if he did, what happened next?

          reply to this | link to this | view in chronology ]

          • icon
            That Anonymous Coward (profile), 25 Jan 2019 @ 3:56am

            Re: Re: Re: Re:

            How he complained is up for debate.
            One can complain about the traffic, but that hardly motivates a government offical to do a study unless you send an actual complaint.
            "Well all of my bitching at the kitchen table finally paid off, they added more lanes!"
            How the complaints were made is never specified, beyond he and his friends complained a lot about the fake accounts.

            From my reading the Ex being behind all of this still isn't a proven fact, it is an assumption. Rather that file a lawsuit against him, we move directly to suing Grindr for not doing "enough" & unproven claims that Grindr was giving his location to people seeking sex based on a story that the app leaked locations. But pretending these people showed up to have hardcore risky sex based only on location data is a stupid play. There is a 3rd party who talked to the guys looking to hook up, & that person provided the locations to show up at. But Grindr leaked location data, so that is enough to pretend they are at fault.

            The complaint mentions 14 police reports, but are light in details against who they were filed against... the ex or the sex seekers who showed up and were to pushy...
            It mentions the filing for a protective order, but no information on the outcome... not even sure who the order was filed against.

            The rest of the complaint delves into how horrible it is that the profiles claim he is HIV+, enjoys rough kinky sex, etc etc...
            Grindr didn't make those profiles, and pretending they did is how you can blame it all on them.

            He mentions that when he found fake profiles on Scruff, they were all helpful and such & banned IP addresses (which anyone who understands knows isn't a solution)... but the complaint was made, then people at Scruff then pointed him to the policy on reporting fake profiles & he verified who he was then they did something about it.

            One does wonder if Grindr sent him a link to their reporting system (I have no idea I don't use these apps) that went to spam or if he just thought yelling louder would get it done. Perhaps Grindr could have had more of a human touch to how they did it, but unless he followed the steps what were they supposed to do?
            Just suspend any account anyone sends them a message claiming is fake and then face backlash and liability when it turns out it was a fake report?

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2019 @ 4:22pm

    Stalking

    Didn't this guy have a court order against his stalker?
    If he couldn't find relief via the court, how could Grinder do better?
    Violating a stalking order should have gotten him dragged into court. If that didn't happen, was it because there was no actual *proof* involved? Without proof, should a company take spurious action?

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 23 Jan 2019 @ 8:05am

      Re: Stalking

      Oh but this entirely different hookup site worked with him & they banned ip addresses (STOP LAUGHING ITS WHAT HE PUT IN THE FILING) to stop this.

      He mentioned filing for an order & filing 14 police reports... but if he was so upset he didn't follow up why does a 3rd party owe him a duty?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2019 @ 5:22pm

    Well, I think we just learned John Smith's actual name...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Jan 2019 @ 11:23pm

      Re:

      not fuckin cool at all.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Jan 2019 @ 1:02am

        Re: Re:

        Okay, given that some people clearly need a /sarc mark explanation, I don't actually believe John Smith is Herrick. Joking that the usual Techdirt trolls' true identity is that of a plaintiff with a vested interest against due process is par for the course.

        John Smith hasn't exactly helped his case by mentioning this lawsuit in his usual, cryptic, "Section 230 is doomed and this site is going down nyah nyah" method. It does inspire curiosity as to why Section 230 holds such a cold, bitter place in his heart. You know, aside from the whole scam-masquerading-as-a-self-help-book-authorship scheme he already has going on.

        I'm not encouraging, or excusing the harassment Herrick has gotten, but the premise of blaming an external platform for something they had no part in beyond hosting, and trying to paint it as their responsibility, is scummy, context or no.

        reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 23 Jan 2019 @ 5:18am

          Re: Re: Re:

          The stalking line hass been crossed.

          God bless online review sites for lawyers, who are also officers of the court and state actors.

          Be careful who you fuck with, people. You're on much thinner ice than you think.

          The right to practice law is a privilege which can be revoked. 42 USC 1983 (which applies to officers of the court) has teeth.

          Why are people risking so much over an internet comments section? tsk.

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 23 Jan 2019 @ 9:03am

            Re: Re: Re: Re:

            Why are people risking so much over an internet comments section?

            230 covers more than this comments section. It covers every comment section on every other blog that has one. It also covers comment section services such as Disqus. And it also covers every other service and website that allows third-party submissions. That means Twitter, Tumblr, Blogger, YouTube, DailyMotion, Vimeo, iMDB, Rotten Tomatoes, MetaCritic, every forum, every Mastodon instance, every Discord server, every search engine, every email provider — all of them, to the last, given the ability to moderate and the right to exist without being turned into the legally liable party in cases such as these thanks to Section 230.

            You, who would turn the Internet into a read-only medium, would do well to remember that. You, who would open the door for corporations to take over the Internet and turn it into yet another broadcast system where the big name players can crush small-time artists all over again, might want to reconsider your position. You, who fumes over the anonymity of others “attacking” you while simultaneously using that same anonymity (which is, in its own way, protected by Section 230), may want to rethink just how much of a hypocrite you are willing to make out of yourself.

            Then again, “fuck your feelings” seems to be your philosophy in life, judging from all your past posts, so…go ahead, keeping making yourself look like an ass. At least then I know what cartoon character I can use as a nickname for you.

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 23 Jan 2019 @ 9:57am

              Re: Re: Re: Re: Re:

              You, who fumes over the anonymity of others “attacking” you while simultaneously using that same anonymity (which is, in its own way, protected by Section 230), may want to rethink just how much of a hypocrite you are willing to make out of yourself.

              That train not only left the station ages ago, it took a ship to another country, boarded a spacecraft, and is currently heading out of the solar system.

              reply to this | link to this | view in chronology ]

            • identicon
              guy, 23 Jan 2019 @ 10:53am

              Re: Re: Re: Re: Re:

              Also all the lawyer review sites he is threatening other commentors with.

              reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 23 Jan 2019 @ 9:29am

            Re: Re: Re: Re:

            Yeah, the person spouting repeated vague anonymous threats is really the voice of reason here.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 23 Jan 2019 @ 12:02pm

            Re: Re: Re: Re:

            Bring it on you fat, old, impotent, fuckwit.

            reply to this | link to this | view in chronology ]

          • identicon
            bob, 23 Jan 2019 @ 3:11pm

            Re: Re: Re: Re:

            Well if this is now considered by you to be a courtroom. I want to be the judge.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 23 Jan 2019 @ 4:49pm

            Re: Re: Re: Re:

            And look who came to take the bait!

            You literally claimed that nobody reads this site and nothing this site does will ever influence law. So which is it? Does this site have readers or doesn't it? Gods, you're insufferably easy.

            reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 23 Jan 2019 @ 5:15am

      Re:

      There is already police involvement and now there will be even more.

      You're one step away from a legal nightmare.

      Libel law isn't qll that applies here.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jan 2019 @ 1:07am

    If his claims about tracking him have merit.....

    It'd be easy for him to prove.
    If Grindr has indeed conflated his personal location data with the fake account, he could easily demonstrate this simply by utilising third party apps which use the API forlocation tracking such as Fuckr. If his claims are true, this will be able to identify his location every time. It's not hard to demonstrate if this is the case.

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 23 Jan 2019 @ 3:24am

      Re: If his claims about tracking him have merit.....

      Except the app wasn't telling the other users to show up at his work and demand the secks, the app didn't tell them his home address.

      His crazy ex (who he caught pretending to be him on Grindr when they were together & was one of the reasons they broke up) made a fake account, set the hookup range to huge, and then in private messages directed them to show up and harass his ex (the horny guys he sent thought they were talking to the actual guy & there isn't a glowing magic symbol that tells you you are being catfished to stalk an ex-BF).

      Dude & his friends reported the accounts & complained to Grindr and Grindr didn't do anything that they could see. I can send reports claiming to be someone famous on Twitter and demand the fake account be shut down for impersonating me... if they don't I should get a multi-million payday?

      While that one cop, who got the warrant to force the teen to get hard and masturbate to compare his cock to pictures in a cell phone, was sure he could identify him by his cock shots its not a science & there is more downside than upside when trying to do this. (We note the cop later was revealed to be a long term child abuser & killed himself.)

      If you read the complaint after a few 100 men harassed him he filed 14 police reports & petitioned family court for a protection order. He even put up a sign telling dudes who showed up at his door that they got catfished & one tore it down & was mean.

      No mention if the protection order was granted, or who he was seeking it against.

      If you know your evil ex is directing men to your door but you only file complaints about the rowdy guys its hard to build a case.
      If you know your evil ex is behind this how is there no mention of a police investigation?
      How do you claim fear & suffering that Grindr needs to pay you millions for when you are only suing them and not the evil ex?
      Is it even the evil ex like you claim or is it someone else?

      I mean I understand that whole cops suck & don't take things seriously when teh gays fight each other, but shoving 14 reports of dangerous men showing up on your doorstep will motivate even the dumbest doughnut muncher into doing SOMETHING to cover his ass because the next stop would be a victims rights group or the DA who really will make the doughnuts taste bad.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Jan 2019 @ 7:43am

        Re: Re: If his claims about tracking him have merit.....

        Hey, totally down with him getting all Scott Pilgrim on his evil ex, was merely commenting on his specific claim that the app was exposing his personal geolocation data in addition to the addresses his ex had given out via the fake account, allowing them to show up wherever he happens to be, not just the addresses the ex gave out.

        That's easily provable if it's happening, easily disproven if it's not, and would if true highlight (yet another) flaw in grindr tracking that data beyond those already apparent. It probably shouldn't be relevant to any 230 matters, but would be one more notable issue with a separate existing problem. If not true, then it's irrelevant to anything. The point is it's an easily testable claim.

        reply to this | link to this | view in chronology ]

        • icon
          That Anonymous Coward (profile), 23 Jan 2019 @ 8:08am

          Re: Re: Re: If his claims about tracking him have merit.....

          Dude sets fake accounts location as NYC...
          Chats with dudes pretending to be Herrick.
          Dude gives them Herricks details, his address, his work address...

          But somehow Grindr did it.

          People answer fake hookup ad, bad guy sends those people to harass his ex, but Grindr should have known that this was all being done by an unbalanced freak harassing his BF because he sent them an email & not a court case or LEO contact.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 23 Jan 2019 @ 3:03pm

            Re: Re: Re: Re: If his claims about tracking him have merit.....

            As I said, if he wants to claim anything more than that, as he is claiming, then that is easy to verify one way or another, since that info is readily accessible. If he cannot prove that geolocation data has been conflated in their systems, then there is no case for them having directly contributed to his ex's acts through negligent actions.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jan 2019 @ 11:08am

      Re: If his claims about tracking him have merit.....

      An even better idea, get an expert to check whether his ex installed a tracking app on his phone.

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 25 Jan 2019 @ 3:58am

        Re: Re: If his claims about tracking him have merit.....

        Even better than that, sue the Ex and prove it was him first??

        He thinks it was evil ex, but well that finding of fact is based on his feels not a legal outcome.

        The Ex would know where he works & where he lives, one wouldn't need a tracking app to send people there looking for the sex.

        But thanks for adding some more mud to the water confusing the issues.

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 23 Jan 2019 @ 3:02am

    Oy vey.

    Well me and my friends all reported the bad accounts to Grindr and they didn't stop him.

    - Filing a police report about your abusive ex stalking you and sending people to harass you gives you LEO's who can alert Grindr & get their attention better. I chit chat with gay porn stars on teh twitters (I know shocking) and I often have a sad chuckle when their real accounts get thrown off of the platforms for 'impersonation' while the 14 imposters who lifted their pics they reported don't get shut down.

    Grindr should take proactive steps to protect me from an abusive ex they know nothing about!

    - Seriously? I'm sorry you stuck your dick in crazy who decided to send a cavalcade of men to your door when you broke up, but demanding a payday for some imagined duty is highly stupid.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 23 Jan 2019 @ 5:20am

      Re:

      That AC isn't as anonymous as he thinks, but he sure got the "coward" right.

      Oh I'd love to drop the journalistic hammer here, but this is not the place. Just a matter of time though.

      Look at this twerp defending a platform which enabled that thype of harassment. 230 is dommed, as will be numerous law licenses once all is said and done. So many people involved at this point from so many walks of life it'll be amazing to watch when someone lights the fuse. They're too compulsive NOT to light it too. Just sick, stupid people who think they can fool the world.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Jan 2019 @ 7:38am

        Re: Re:

        >Oh I'd love to drop the journalistic hammer here, but this is not the place. Just a matter of time though.

        Name and shame, dood, if you can. If not, shut up and stop trying to act line an Internet Tough Guy. It just makes you look silly.

        reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 23 Jan 2019 @ 8:11am

        Re: Re:

        Dude I am sorry your penis is so small you have to lash out at others online but that isn't germane to this case.

        If you think Grindr is responsible here, please explain why victims can't sue gun makers. How are they different.

        Also either tell the class who I am or stop pretending you managed to do something real lawyers were unable to accomplish.

        reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 23 Jan 2019 @ 3:52am

    Platforms don't harm people; people harm people (most often when they become plaintiffs--because their principles are defective and they're negligent of the harm they do [also known as the "I'm right, you're wrong" principle]).

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 23 Jan 2019 @ 5:22am

      Re:

      There Is a lawyer mafia online thzt relies on 230 to salami-slice its crimes, many of which include stalking and harassment, or even death threats and hacking.

      Look at how DESPERATE they are to defend this toxic law. Without it they'd already be in prison or disbarred. Matter of time before many of them will be. Too many people know too much.

      What will bring them down, however, will be another law not even mentione here. Hint: it haqs a "c" and a "3" in it.

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 23 Jan 2019 @ 5:24am

      Re:

      Actually it's called "proof by assertion."

      What is done in the dark WILL be brought to the light. Bad actors don't usually look very far ahead. In this case they've already walked into the net and don't even realize it.

      Wonder if they know who has already flipped?

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 Jan 2019 @ 5:02am

    Masnick is being disingenuous here.

    Platforms whose business models cannot exist without respecting the rights of individuals do not deserve to exist. Section 230 has allowed these monstrosities to grow to the point where they are defended on sheer size alone, as if a better internet could not be rebuilt in its place.

    The Aspie/4Chan crew that runs the comments here will chime in and this is not the place to shed full light on Masnick, but his support of a law that causes a man to be harassed the way this one was only shows where his loyalties lie. People like this offer little to a civilized digital society and should be ostracized to the point of complete exclusion.

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 23 Jan 2019 @ 8:12am

      Re:

      Craig is that you?

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 23 Jan 2019 @ 9:09am

      Re:

      Platforms whose business models cannot exist without respecting the rights of individuals do not deserve to exist.

      Well, shit — there goes capitalism as a whole.

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 23 Jan 2019 @ 10:08am

        Re: Re:

        "Platforms whose business models cannot exist without respecting the rights of individuals do not deserve to exist."

        Like prisons?
        I mean there is a story about how they saved a convict from committing suicide & then returned him to the same cell with the noose still in place... shocker... he killed himself.
        Stories about sexual abuse of prisoners by guards that no one took seriously? Even convicts have a right to not get raped.
        Or those handy guards who boiled a man to death, made other convicts clean up the bits that fell off, & somehow didn't face any charges?

        There are lots of platforms that do not conform to your view of reality, why is it only 230 gets your cock hard?

        reply to this | link to this | view in chronology ]

    • icon
      CrushU (profile), 23 Jan 2019 @ 10:16am

      Re:

      of a law that causes a man to be harassed the way this one was

      I think I missed the part of Section 230 that forced the evil ex to provide contact info to prospective suitors.

      (Pop Quiz: What exactly did Grindr do here that couldn't have been accomplished by going to a masquerade gay bar and giving out contact info there?)

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jan 2019 @ 12:09pm

      Re:

      Oh are we doin the dirty cyber-lawyer mafia fantasy again? Hold on while I get out my briefcase, dress shirt and pinstriped assless chaps!

      reply to this | link to this | view in chronology ]

  • identicon
    bob, 23 Jan 2019 @ 12:07pm

    Anyone else reminded of the movie Hackers from this post?

    reply to this | link to this | view in chronology ]

  • identicon
    Adrian Quirarte, 5 May 2019 @ 2:26pm

    Loops Holes in Grindr

    Article from September 2018: It is Still Possible to Obtain the Exact Location of Millions of Cruising Men on Grindr.

    Link:
    https://www.queereurope.com/it-is-still-possible-to-obtain-the-exact-location-of-cruising-men -on-grindr/

    My guess is with Jail-broken iPhones, Rooting Androids or those using a Virtual Android device on any computer OS, could potentially facilitate Faking ones IP address, Geolocation, Device ID, Mac Address etc by simple tweeks and mods depending on how desperate the “anons” are to disguise their identities.

    I imagine if they were making an attempt to be extremely clever, they could also copy their targets device information to make it appear as if the targets phone was the device used to facilitate the crimes, although if the crime was serious and the target was at point (A) instead of point (B) it would raise suspicions.

    This is particularly dangerous and bothersome should there be a violation of grindrs policies by users in foreign countries, since virtual kidnappings, Extortion, the Request of payments via cryptocurrency or even sending enticing links to the target phones embedded with “cryptojacking” software are on the rise.

    Cryptojacking would allow the target phone to Mine Cryptocurrency without the targets awareness for an indefinite amount of time.

    Like reports of virtual kidnappings, extortion, and terroistic threats via social media, phone or text ( or for example a situation where the “anon” could threaten their target with exposing their “Photos” to family and friends from the targets linked Facebook and Instagram accounts.)

    Its unlikely that Police will be looking to intervene on Gay Dating Apps that have 18+ Content.

    This is especially true with Mexican Trolls on Trolling Individuals on Social Media in the United States. Both Men and Women have reported that the police have failed to help, since it happens so frequently.

    Also see:

    ‘We’re going to find you.’ Mexican cartels turn social media into tools for extortion, threats and violence

    https://amp.desertsun.com/amp/2280756002

    reply to this | link to this | view in chronology ]


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