Kira M. Geary*
Abstract
For ten months, Matthew Herrick endured a continuous campaign of harassment that was remotely coordinated by his ex-boyfriend. Herrick’s ex used the dating app Grindr to send over 1,400 men to harass Herrick, both at Herrick’s home and place of work. Herrick sent over 100 complaints to Grindr, several cease-and-desist letters, and even obtained a temporary injunction ordering Grindr to ban his ex from using its services. However, despite Herrick’s efforts, Grindr refused to take any action. Herrick then filed suit, bringing product liability claims against Grindr for failing to implement widely used safety features in its software to protect its consumers from injury. Nonetheless, both the Southern District of New York and the Second Circuit Court of Appeals found that Grindr was immune from liability under Section 230 of the Communications Decency Act.
Herrick v. Grindr fits within a line of cases in which courts have interpreted Section 230’s scope so broadly that interactive computer services (“ICSs”) now enjoy near-total civil immunity. This broad immunity has come at the cost of consumer safety, and plaintiffs like Herrick, who allege injuries due to defectively designed or defectively manufactured app software, have been left largely without a legal remedy.
This Comment uses the flawed reasoning in the Herrick v. Grindr line of decisions to explain why Section 230 should not shield ICSs from liability when they fail to enact widely available safeguards to protect their apps’ consumers from abuse and violence. This Comment explains why product liability claims like Herrick’s should be permitted as a remedy for injuries resulting from poorly designed or poorly manufactured software that fails to protect users from foreseeable harm. Ultimately, this Comment argues that Congress, using the Fight Online Sex Trafficking Act (“FOSTA”) as a framework, should amend Section 230 to allow product liability suits to be brought against ICSs.
*J.D. Candidate, The Pennsylvania State University, Penn State Law, 2021.