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Section 230 Preempts Clean Air Act Lawsuit Over “Defeat Device” Apps—U.S. v. EZ Lynk

This case involves “defeat devices.” When installed on a car, they suppress or bypass emission controls designed to protect the environment. It’s terrible that anyone uses defeat devices because we urgently must do more, not less, to prevent climate change.

Section 203 of the Clean Air Act bans the manufacture or sales of defeat devices. (Yes, I struggled throughout this post keeping 203 separate from 230). The US government brought a civil lawsuit against the defendants for 203 violations. A reminder that if the US government had prosecuted the defendants for violating the Clean Air Act, Section 230 would have been irrelevant (it doesn’t apply to federal criminal prosecutions).

The defendants run a service called the “EZ Lynk System,” which consists of three components:

Physical hardware, called the “Auto Agent,” that enables users to install software on their car and override the software already there. The defendants sell this hardware.
The “EZ Lynk Cloud,” a library of third-party software programs (confusingly called “tunes” that can be installed on cars, including defeat devices. It appears that the defendants monetize the downloads using a synthetic currency called “tokens.”
The “Auto Agent App“, which allows users to control the physical hardware.

Stripping this system down to its Internet Law basics, the defendants apparently run a walled garden app store for car modification apps. There are many legitimate activities enabled by this system. For example, the app enables users to “Adjust tire pressure monitoring (TPMS) thresholds to match installed tire ratings,” “Correct your speedometer to match resized tires,” and “Adjust Fuel Tank Capacity after changing your tank size.”

In addition, the defendants participate in a Facebook forum called the “EZ Lynk Forum.” Forum posts extensively discuss using the EZ Lynk System to install defeat devices, and EZ Lynk representatives used the like and love reactions on some of those posts.

In the end, the government sought to hold the defendants liable for the third-party defeat device apps available in the cloud because the defendants run this overall system. It doesn’t work. Instead, the court easily finds that the defendants qualify for Section 230 protection.

To avoid Section 230, the government first tried the very tired argument that Section 230 is an affirmative defense that cannot be asserted against a motion to dismiss. The court replies: “The Second Circuit has affirmed dismissal at the pleading stage in several of its key cases interpreting Section 230.”

The court turns to the prima facie elements of Section 230:

ICS Provider. The Cloud app store qualifies as an ICS. To get around this, the government argued that Section 230 only applies to “message boards.” Seriously? We don’t normally expect the government to fail at basic statutory reading and precedent review so badly. The court gently replies: “Contrary to the government’s suggestion Section 230 immunity is not reserved for social media platforms.” The fact that the defendants’ hardware is part of the system doesn’t change the ICS analysis.

Publication of Third-Party Content. “The government’s Section 203 claim is based on the use of the EZ Lynk System to acquire and install third-party software capable of defeating emissions controls….In the absence of the emissions-defeating software created by third parties, and the EZ Lynk Defendants’ publication and transmission of that software to drivers via the EZ Lynk Cloud, the government would not have a Section 203 claim against the EZ Lynk Defendants.”

Section 230 Workarounds. The government argued that it was suing the defendants for their (mis)conduct, but the court says the allegations turn on the defendants’ distribution of third-party apps, so Section 230 squarely applies. The government also argued that the defendants “collaborated” with the allegedly unlawful conduct, but the factual allegations did not support that. Instead, the court says it’s being asked to “infer” the collaboration due to the defendants’ alleged “guilt-by-association,” but nothing supports a reasonable inference that the defendants “participated in the creation of delete tunes.”

The government also argued that the defendants encouraged car owners to (illegally) obtain and install delete devices. First, it maintained the Facebook forum, but Section 230 protects forum operation (cite to the Force case). Reactions to the Facebook posts also don’t affect Section 230 because the reactions didn’t directly and materially contribute to any illegality.

The government also argued that the defendants provided customer support to their users knowing that they were installing defeat devices. However, the users’ Facebook posts didn’t actually stand for that proposition. The court summarizes:

The social media posts in the Complaint are useful to show what EZ Lynk knew or should have known for purposes of stating a claim under Section 203 of the Clean Air Act. However, they fall far short of alleging direct and material contributions to illegal activity for purposes of nullifying immunity under Section 230 of the Communications Decency Act.

Transparency Obligations. Section 208 of the Clean Air Act permits the EPA to demand information from parties regarding defeat devices. The court says that Section 230 doesn’t apply to the demand, nor do the defendants get a free pass from 208 simply because they qualified for Section 230. This is a reminder of how the government can use transparency demands to get at the exact same issues that Section 230 is designed to protect, with censorial implications.

Implications

As the court acknowledges, it may seem counterintuitive that Section 230 preempts claims based on a statute so seemingly distant from speech issues as the Clean Air Act. However, because the apps in the app store are third-party content and they were the crux of the government’s action, Section 230’s applicability becomes obvious. The government tried many of the usual tricks to overcome Section 230, but this judge was savvy enough not to fall for them. If you think it’s unconscionable that Section 230 overwrites the Clean Air Act, note that the government didn’t play its foolproof get-out-of-230-free card of prosecuting the defendants.

In all, this is an embarrassing loss for the government, who ran straight into Section 230 without a clear plan to navigate around it. Credit also goes to the defense team from Greenberg Traurig and Judge Mary Kay Vyskocil.

Case Citation: U.S. v. EZ Lynk Sezc, 2024 WL 1349224 (S.D.N.Y. March 28, 2024)

The post Section 230 Preempts Clean Air Act Lawsuit Over “Defeat Device” Apps—U.S. v. EZ Lynk appeared first on Technology & Marketing Law Blog.

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