Cars, Guns, Cider, And Snapchat Don't Cause Crime

from the how-fast-am-i-typing? dept

A carefully posed photo of dangerous driving attracted some attention online in early May. The photo shows a picture from the driver’s seat of a Nissan. The photographer is driving, doing 90 mph as he brandishes a handgun with his finger resting on the trigger. To make matters worse, there’s an alcoholic cider propped against the dash. This extensive set of unsafe behaviors was intended to outrage, offend, and attract attention — all goals it undoubtedly met. And such foolishness is an invitation to a lengthy imprisonment. But it would be a mistake to treat Nissan, Heckler & Koch, Angry Orchard Hard Cider, the driver’s cell phone manufacturer, and whatever platform he used to share the photo as responsible for his misbehavior.

Unfortunately, two ongoing lawsuits against Snapchat apply this logic to the app’s speed filter feature. Alongside other sensor-based filters, like altimeters and location-based geofilters, Snapchat provides a speedometer filter that superimposes the user’s current speed over a photograph. Passengers can use the filter safely in all manner of vehicles, from boats to airplanes. However, it can also be used dangerously by reckless drivers speeding on public roads in pursuit of a high speedometer reading.

In September of 2015, teen driver Crystal McGee was allegedly traveling at over 100 miles-per-hour while using Snapchat when she struck Wentworth Maynard’s vehicle. McGee was later charged with causing serious injury by vehicle, but Maynard sued both McGee and Snapchat, attempting to hold the company responsible for McGee’s reckless driving.

In most cases, Section 230 of the Communications Decency Act indemnifies the creators of an “interactive computer service” against liability for consumer misuse of their publishing tools. The law prevents social media platforms from being treated as the “publisher or speaker” of user-generated content.

Indeed, the case was initially dismissed on Section 230 grounds, but this decision was reversed by the Georgia Court of Appeals. The court reasoned that because McGee did not actually post the photo, Snapchat was not being treated as the publisher of her speech, but the creator of a dangerous product that had somehow, per Maynard’s complaint, “facilitated McGee’s excessive speeding.” The court allowed the case to go forward because the suit “seek[s] to hold Snapchat liable for its own conduct, principally for the creation of the Speed Filter and its failure to warn users that the Speed Filter could encourage speeding and unsafe driving practices.”

It’s hard to see how the existence of Snapchat’s speedometer encouraged Crystal McGee to drive at 113 miles-per-hour on a busy road. Snapchat doesn’t reward users for achieving high speedometer ratings, and opening the filter triggers a popup warning reading: “Please, DO NOT Snap and drive.” Snapchat may have made it easier for her to record and share her behavior, but reckless drivers have long taken photos of their speed as displayed on the dash. One might just as easily claim that the existence of dashboard speedometers similarly encourages speeding. Arguably, driving fast might be less alluring without a way to determine how fast you’re actually going. The collection of items in the photo above all contribute to its outrageousness, yet none of the companies represented are responsible for the reckless tableau.

In Lemmon v. Snap, a similar case dismissed with leave to amend in February, the District Court for the Central District of California found that Section 230 protected Snapchat from liability because the filter “is a neutral tool, which can be utilized for both proper and improper purposes. The Speed Filter is essentially a speedometer tool, which allows Defendant’s users to capture and share their speeds with others.” While a user might behave recklessly in pursuit of a high recorded speed, the decision is theirs and theirs alone. The court describes the recorded speed as content submitted by the user. “While a user might use the Speed Filter to Snap a high number, the selection of this content (or number) appears to be entirely left to the user,” the Court reasoned. Snapchat doesn’t play a role in selecting the user’s speed, making it a “neutral tool” protected by Section 230.

While Maynard and Lemmon may seem like instances of overly litigious ambulance-chasing, and Snapchat will likely win its case even in the absence of Section 230, the suit’s sweeping theory of intermediary liability has supporters in Congress.

In a recent Federalist Society teleforum, Josh Divine, Deputy Counsel to Sen. Josh Hawley, argued that Snapchat should be held responsible for users’ misuse of the filter. Divine asserts that “most people recognize that this kind of tool is primarily attractive to reckless drivers and indeed encourages reckless driving,” ignoring both the varied, user-defined applications of the filter, and its inbuilt warning. He contends that plaintiffs in the speed filter lawsuits are “complaining about a reckless platform design decision” rather than anything “specific to speech.” However, Maynard and similar suits hinge on platform design’s facilitation of user speech. Snapchat is being sued upon the belief that it contributed to the plaintiffs’ injuries by providing a tool that allows speakers to easily tell others how fast they’re moving. Any remedy would involve limiting the sorts of speech that Snapchat can host.

Section 230 was intended to protect the creation and operation of communicative tools like Snapchat. In Maynard, litigants attempt to circumvent Section 230 by, in essence, suing over Snapchat’s non-use, alleging that Section 230 should not apply because McGee did not actually publish any photos taken before the crash. If merely creating a tool that can be used illegally or dangerously opens platforms to liability, Section 230 offers little real protection, and such a determination would imperil more than camera-speedometer amalgamations. Responsibility for one’s behavior — be it the dangerous acts pictured above, or the reckless driving at issue in Lemmon and Maynard — should rest with the individual.

Will Duffield is a Policy Analyst at the Cato Institute

Filed Under: blame, filters, intermediary liability, lawsuits, snapchat filters, tort law
Companies: snapchat


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  • identicon
    Anonymous Coward, 16 Jun 2020 @ 2:04pm

    Not hard to see at all

    It's easy to see how snapchat's filter would encourage morons to behave moronically. They are easily enticed by such a thing, like moths to a flame. It's not the flame's fault, nor is it snapchat's that their user is a moron.

    I feel sorry for the victim, but that's on the idiot taking the photo, no where else.

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

    • icon
      JMT (profile), 16 Jun 2020 @ 3:01pm

      Re: Not hard to see at all

      "It's easy to see how snapchat's filter would encourage morons to behave moronically."

      It's easy to see how practically anything could be construed to encourage morons to behave moronically. We can't design our world, both physically and legally, to prevent all morons from being morons.

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

      • identicon
        Anonymous Coward, 17 Jun 2020 @ 7:45am

        Re: Re: Not hard to see at all

        Really the biggest encouragement to moronicy is by assigning responsibility to anyone other than the absolute moron. Even they can see not being held responsible as encouragement.

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

    • icon
      K`Tetch (profile), 16 Jun 2020 @ 6:05pm

      Re: Not hard to see at all

      I've actually bee curious to see what happens in Waze, if you go double the speed limit.

      For those that don't know, waze has a speedo thing in the bottom corner, it completes a full circle when you hit the speed limit, and then starts a new one in red when you go over. so in theory when you hit 2x the speed limit, whats it going to do?

      I've been tempted to try it, but there's only one area I would, and that's actually right by a state patrol office, it's a closed dead-end road that just accesses some government buildings/facilities with a 15mph limit, but most people (even school buses) do 25+ (it's safe). So if I were to do it, I'd add it and do it there when safe.

      it may encourage it, but that don't mean anything

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

  • icon
    aerinai (profile), 16 Jun 2020 @ 2:09pm

    gotta get rid of speedometers in cars then... if I don't know how fast I'm going then I won't be driving recklessly /s

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

  • identicon
    christenson, 16 Jun 2020 @ 2:11pm

    Time for a deepfake...

    of me doing 120mph in the 200 foot parking lot at work, with pics of the speedometer and tach and all. Just for fun we'll have the info display showing I'm getting 60mpg at the same time!

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

    • icon
      Upstream (profile), 16 Jun 2020 @ 2:29pm

      Re: Time for a deepfake...

      No kidding! I know next to nothing about Snapchat, since I do not participate in it, but I do know a bit about Photoshop, GIMP, etc. Is there any reason to take the photo as anything more that a safety-baiting fake?

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

  • icon
    Coyne Tibbets (profile), 16 Jun 2020 @ 2:16pm

    This will solve every problem we have

    Nice to know that, pretty soon, we can sue Twitter for encouraging Trump by creating a tool to enable his fact free tweets.

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

    • identicon
      Anonymous Coward, 16 Jun 2020 @ 2:27pm

      Re: This will solve every problem we have

      Yeah, it really sucks that the President has the same First Amendments rights we all should have.

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

      • icon
        Coyne Tibbets (profile), 17 Jun 2020 @ 5:33am

        Re: Re: This will solve every problem we have

        The proposal is to ban a tool used by one person who was dangerous and stupid -- it doesn't implicate that person's rights at all. That person can still act dangerous and stupid and take their picture, they just can't use the tool anymore to publish it.

        So why wouldn't we go from there to banning Twitter entirely because stupid people use it to publish stupid posts? That wouldn't affect stupid people's First Amendment rights either -- certainly not Mr. Trump's, since he has a whole government to publish his stupidity.

        Idiot's quote of the day: We're not banning Free Speech, just the tools that publish free speech, and that's perfectly fine.

        Like hell it is.

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

  • identicon
    Anonymous Coward, 16 Jun 2020 @ 2:29pm

    Might as well sue the mothers' of snap chat employees for providing the employees with all the tools to hurt people.

    It makes about as much sense.

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

  • icon
    K`Tetch (profile), 16 Jun 2020 @ 2:38pm

    I know the road well.
    She's lucky because area's usually riddled with cops - so bad and so frequent with speedtraps (causing people to suddenly hit their brakes) or "DUI checkpoints" especially in Henry County (where the Atlanta Motor Speedway is) that its more surprising that she got to go fast without being pulled.

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

  • identicon
    Bobvious, 16 Jun 2020 @ 2:42pm

    You were driving a Nissan?

    Get the hell out of that deathtrap before you kill someone
    /s

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

  • icon
    Koby (profile), 16 Jun 2020 @ 2:47pm

    Narcissism

    It’s hard to see how the existence of Snapchat’s speedometer encouraged Crystal McGee to drive at 113 miles-per-hour on a busy road. Snapchat doesn’t reward users for achieving high speedometer ratings

    For narcissists on the internet, the appeal is to get attention from other people. Numerous fools have posted pictures and videos of themselves doing dangerous things (see: planking, parkour fails, close ups with wildlife, and many more).

    People just don't have a sense of personal responsibility anymore. It's sad.

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

    • identicon
      Anonymous Coward, 16 Jun 2020 @ 4:41pm

      Re: Narcissism

      People just don't have a sense of personal responsibility anymore.

      Survival of the fittest.

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

    • icon
      Philosopherott (profile), 17 Jun 2020 @ 6:30am

      Re: Narcissism

      Yeah those damn kids and there music; you should tell them to get off your lawn too while your at it.

      This young lady was endangering others; the activities you are speaking of hurt no one but the people. and most of them don't cry about it.

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

  • icon
    Nathan F (profile), 16 Jun 2020 @ 2:53pm

    And while we are at it how about we sue gun makers. They have to know that their guns will encourage people to go out and shoot someone. Since they haven't done enough to stop that they should be held responsible also.

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

  • icon
    That Anonymous Coward (profile), 16 Jun 2020 @ 3:53pm

    Sen. Josh Hawley - Just as soon as you pass a law holding gun makers responsible for every mass shooting we'll listen to you.

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

    • identicon
      Anonymous Coward, 16 Jun 2020 @ 6:11pm

      Re:

      More aptly to the gun point. Let's say someone has a laser pointer attached to their gun, doesn't bother to have the safety engaged, and has a round in the chamber. Now, it would be fun to run the little red dot across the body of people nearby. Like in the movies. Now if the unsafe moron doing said act ended up shooting someone, would the manufacturer be liable? Especially if it didn't warn to keep the safety on when just playing with the laser pointer?

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

  • identicon
    Anonymous Coward, 16 Jun 2020 @ 4:27pm

    You know, if there were a reasonable legal basis by which to hold Snapchat accountable, it would be akin to local "attractive nuisance" laws. So fine Snapchat 50 spacebucks and tell them to make the filter unavailable.

    They did say the filter should be unavailable, right?

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

  • identicon
    Anonymous Coward, 16 Jun 2020 @ 10:31pm

    Let's get ALL the imtermediaries

    If snap bears responsibility for somehow encouraging this dangerous, moronic behavior, why isn't the vehicle manufacturer liable? After all, virtually every car and truck sold for the last (at least) 10 years is totally computer controlled.

    Any manufacturer can ship an automobile which can't travel more than say, 80 mph and with limited acceleration. Why aren't they held to that standard? It would save lives! Of course the mandated measures can be defeated by the user by reprogramming the MCU or other modules as many who have bought used police vehicles can attest. But it's that user behavior which should be the sole determiner of culpability.

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

  • identicon
    Glenn, 16 Jun 2020 @ 11:35pm

    "The devil made me do it!"

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

  • icon
    Philosopherott (profile), 17 Jun 2020 @ 6:26am

    Suing the car company

    If this is the case and they are suing for allowing a device or product that encourages speeding/unsafe activities why aren't all cars in the US governed to the maximum speed limit of 80 or 85?

    Why isn't the car manufacture being sued? Or flat out banned as there are a tremendous amount of deaths due to motor vehicles every day/year?

    Why aren't the politicians being sued for not saving us from ourselves and each other? Sen. Josh Hawley should be held liable for encouraging reckless behavior by not passing laws that ban cars and guns and fatty foods and tobacco and alcohol and kitchen knives and... I think this slope is slippery enough.

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


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