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NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY

VOLUME 18, ISSUE 3: MARCH 2017

290

UBER AND THE COMMUNICATIONS DECENCY ACT:

WHY THE RIDE-HAILING APP WOULD NOT FARE WELL UNDER

§ 230

Adeline A. Allen

*

ABSTRACT

Uber, a company that offers ride-sharing arrangements

through its smartphone app, has quickly grown in popularity. As

Uber grows in widespread use, injuries involving rides arranged

through Uber have been on the rise. Uber maintains that it is a

technology platform that connects users on its app, not a

transportation company. Such a characterization would render

Uber immune from suits for injuries involving the ride

arrangements under the Communications Decency Act, 47 U.S.C.

§ 230 (2012). The statute offers robust protection for web-based

companies from liability for content provided by third parties. This

article seeks to consider whether Uber’s business model properly

allows it to be under the protection of the Communications

Decency Act. Given Uber’s roles in setting the price for the ride

and in heavily controlling the connection between passenger and

driver, this article argues that more than a platform, Uber is a

content provider in the ride-sharing arrangement and is thus

disqualified from Communications Decency Act immunity.

!

*

Adeline A. Allen, Assistant Professor, Trinity Law School. B.S., cum laude,

University of California, Los Angeles; J.D., honors track, Regent University

School of Law. I thank the faculty of Trinity Law School for their support and

feedback for this article.

MARCH 2017]Uber and the Communications Decency Act 291

ABSTRACT ....................................................................................290!

INTRODUCTION ............................................................................291!

I. UBER AND THE SHARING ECONOMY .......................................296!

II. THE COMMUNICATIONS DECENCY ACT ................................302!

A. What Is a Provider of an Interactive

Computer Service? ..............................................................303!

B. Who Provided the Content? ...........................................305!

C. What Is a Publisher? ......................................................310!

III. WHY UBER WOULD NOT BE IMMUNE UNDER THE

COMMUNICATIONS DECENCY ACT ....................................312!

A. Price-Setting and Providing Content .............................315!

B. Controlling User Connections and Providing Content ..318!

C. Providing Content and Losing Immunity .......................320!

CONCLUSION ...............................................................................321!

INTRODUCTION

It was New Year’s Eve in San Francisco.

1

A mother and her

two young children were walking home through the city after a

visit with the children’s grandmother.

2

The family stepped down

the sidewalk, making their way to cross the street, when a driver in

an SUV, making a right turn onto the street, hit them in the

1

This event occurred on December 31, 2013. Ex-Uber Driver Charged with

Manslaughter in Death of 6-Year-Old, TIME (Dec. 9, 2014),

http://time.com/3625556/uber-manslaughter-charge-san-francisco/.

2

Patrick Hoge, Dead Girl’s Family Steps into Legislator’s Insurance Fight

over Uber, Lyft, BIZJOURNALS: TECHFLASH (June 26, 2014, 3:05 PM),

http://www.bizjournals.com/sanfrancisco/blog/techflash/2014/06/uber-lyft-

insurance-sofia-liu-susan-bonilla.html.

292 N.C. J.L. & TECH. [VOL. 18: 290

crosswalk.

3

The mother and her four-year-old son were injured.

4

Six-year-old Sofia Liu died from her injuries.

5

The driver was driving for Uber,

6

a ride-sharing company that

connects passengers and drivers through an app on their phones.

7

He was driving around with the Uber app open on his smartphone

while waiting to pick up a fare.

8

The driver was later charged with

vehicular manslaughter,

9

but in the words of Sofia’s mother, Huan

Hua Kuang, “[W]hat about Uber?”

10

This article seeks to explore Uber’s liability when rides

arranged through its app cause injury to bystanders, as in the case

of Sofia Liu’s family, or to its own passengers and drivers.

11

3

See Josh Constine, Uber’s Denial of Liability in Girls’ Death Raises

Accident Accountability Questions, TECHCRUNCH (Jan. 2, 2014),

http://techcrunch.com/2014/01/02/should-car-services-provide-insurance-

whenever-their-driver-app-is-open/; TIME, supra note 1.

4

Constine, supra note 3; TIME, supra note 1; Hoge, supra note 2.

5

Jay Barmann, Uber Reaches Wrongful Death Settlement with Family of

Sofia Liu, SFIST (July 15, 2015, 10:10 AM),

http://sfist.com/2015/07/15/uber_reaches_wrongful_death_settlem.php;

Constine, supra note 3; TIME, supra note 1; Hoge, supra note 2.

6

Barmann, supra note 5; TIME, supra note 1; David Streitfeld, Uber and a

Child’s Death, N.Y. TIMES: BITS (Jan. 27, 2014),

http://bits.blogs.nytimes.com/2014/01/27/uber-and-a-childs-death/?_r=0.

7

How Does Uber Work?, UBER, https://help.uber.com/h/738d1ff7-5fe0-4383-

b34c-4a2480efd71e (last visited Nov. 17, 2016).

8

Barmann, supra note 5; TIME, supra note 1; Streitfeld, supra note 6.

9

Barmann, supra note 5; Carolyn Tyler, Mother of Girl Fatally Struck by

Uber Driver Speaks Out, ABC 7 NEWS (Dec. 9, 2015),

http://abc7news.com/business/mother-of-girl-fatally-struck-by-uber-driver-

speaks-out/429535/.

10

Tyler, supra note 9; see also TIME, supra note 1.

11

Sofia Liu’s family filed suit against Uber. The parties reached a settlement

for an undisclosed amount in 2015. Barmann, supra note 5; Tracey Lien, Uber

Settles Wrongful-Death Lawsuit in San Francisco, L.A. TIMES (July 15, 2015,

5:53 AM), http://www.latimes.com/business/technology/la-fi-tn-sofia-liu-uber-

settlement-20150714-story.html; Streitfeld, supra note 6. Other incidents

include a driver in New York City allegedly crashing into a couple in a

crosswalk, killing the man and injuring the woman; a driver in Los Angeles

allegedly driving under the influence, causing the car to flip over with the

passenger inside; a driver in San Francisco allegedly smashing a passenger’s

face with a hammer, resulting in severe eye injury; and a driver in Hawaii

!

MARCH 2017]Uber and the Communications Decency Act 293

Specifically, this article examines whether Uber would qualify for

the protection of the Communications Decency Act, 47 U.S.C.

allegedly raping a teenage passenger. Injuries are not limited to Uber passengers

or bystanders on the street. Drivers, too, have been injured. For example, a

driver in Los Angeles was allegedly hit by a passenger, breaking his jaw in two

places; while another driver in San Francisco was allegedly attacked by a

passenger, landing him in the hospital with facial injuries. Brad Aaron, Crash

Victim Lawsuit: App Use by Uber Drivers Is Negligent and Illegal,

STREETSBLOG NYC (Mar. 20, 2015),

http://www.streetsblog.org/2015/03/20/crash-victim-lawsuit-app-use-by-uber-

drivers-is-negligent-and-illegal/; Ellen Huet, Uber Rider Might Lose an Eye

from Driver’s Hammer Attack. Could Uber Be Held Liable?, FORBES (Sept. 30,

2014, 9:37 PM) [hereinafter Uber Rider Might Lose an Eye],

http://www.forbes.com/sites/ellenhuet/2014/09/30/uber-driver-hammer-attack-

liability/#4acdc5455999; Ellen Huet, What Happens to Uber Drivers and Other

Sharing Economy Workers Injured on the Job?, FORBES (Jan. 6, 2015, 1:15 PM),

http://www.forbes.com/sites/ellenhuet/2015/01/06/workers-compensation-uber-

drivers-sharing-economy/#62b6fa084c78; Sage Lazzaro, A Hawaii Uber Driver

Has Been Charged with Raping a Teenage Passenger, OBSERVER (Apr. 20, 2016,

2:26 PM), http://observer.com/2016/04/a-hawaii-uber-driver-has-been-charged-

with-raping-a-teenager/; San Francisco Uber Driver Attacked by Passenger,

Suspect Under Arrest, CBS SF BAY AREA (Nov. 28, 2014, 3:49 PM),

http://sanfrancisco.cbslocal.com/2014/11/28/san-francisco-uber-driver-attacked-

by-passenger-suspect-under-arrest-anza-vista-aggravated-assault/; Uber Driver

Arrested on Suspicion of DUI After New Year’s Day Crash, CBS LOS ANGELES

(Jan. 4, 2016, 11:31 PM), http://losangeles.cbslocal.com/2016/01/04/uber-

driver-arrested-on-suspicion-of-dui-after-new-years-day-crash/. Uber does

maintain some insurance for its drivers, a two-tiered structure of coverage for

(1) the time period between turning on the app and accepting a ride and (2) the

time period between accepting a ride and dropping off the passenger at the

conclusion of the ride. Certificates of Insurance—U.S. Ridesharing, UBER

NEWSROOM (Jan. 11, 2015), https://newsroom.uber.com/certificates-of-

insurance-u-s-ridesharing/. Additionally, Uber also requires drivers to carry

personal auto insurance, many of which offer specific rideshare insurance

policies. Harry Campbell, Rideshare Insurance Options for Uber and Lyft

Drivers, THE RIDESHARE GUY (Apr. 6, 2016),

http://therideshareguy.com/rideshare-insurance-options-for-drivers/; Ellen Huet,

New Laws Push Uber and Lyft To Bump Up Insurance Coverage, but a

Collision Gap Remains, FORBES (July 1, 2015, 2:30 PM),

http://www.forbes.com/sites/ellenhuet/2015/07/01/new-laws-push-uber-and-lyft-

to-bump-up-insurance-coverage-but-a-collision-gap-remains/#5d242ceb107c;

Driving Jobs vs. Driving with Uber, UBER, https://www.uber.com/driver-jobs

(last visited June 29, 2016).

294 N.C. J.L. & TECH. [VOL. 18: 290

§ 230 (2012).

12

The statute robustly protects interactive computer

services from liability for content provided by a third party.

13

A

legendary law in the development of the Internet, the statute has

insulated a host of web companies,

14

from Internet service

providers like Google,

15

retail sites like Amazon,

16

and social media

sites like Facebook,

17

to sharing economy sites like StubHub,

18

from a whole host of civil liabilities.

19

Indeed, the statute’s

protection is oft invoked in Silicon Valley.

20

Uber contends that it is a technology platform that connects

passengers and drivers as users of its app, not a transportation

company. This characterization is important, as it would usually

invoke the protection of the Communications Decency Act, thus

insulating Uber from suits by any passenger, driver, or bystander.

But given Uber’s practices of setting the price for the ride

21

and

heavily controlling the connection between passenger and driver,

22

this article argues that Uber is more than a platform, but rather is a

12

Communications Decency Act, 47 U.S.C. § 230 (2012).

13

See infra Part II.

14

See Claire Cain Miller, When Uber and Airbnb Meet the Real World, N.Y.

TIMES (Oct. 17, 2014), http://www.nytimes.com/2014/10/19/upshot/when-uber-

lyft-and-airbnb-meet-the-real-world.html?_r=0.

15

E.g., Jurin v. Google, Inc., 695 F. Supp. 2d 1117, 1122–23 (E.D. Cal.

2010); Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1197–99 (N.D. Cal.

2009); Parker v. Google, Inc., 422 F. Supp. 2d 492, 500–01 (E.D. Pa. 2006).

16

E.g., Joseph v. Amazon.com, Inc., 46 F. Supp. 3d 1095, 1105–07 (W.D.

Wash. 2014); Schneider v. Amazon.com, Inc., 31 P.3d 37, 43 (Wash. Ct. App.

2001).

17

E.g., Klayman v. Zuckerberg, 753 F.3d 1354, 1357–60 (D.C. Cir. 2014).

18

E.g., Hill v. StubHub, Inc., 727 S.E.2d 550, 564 (N.C. Ct. App. 2012).

19

For example, “[t]hat is why Yelp avoids liability when people post

inaccurate or abusive restaurant reviews, and why YouTube does not have to

remove videos that some find offensive.” Miller, supra note 14; see also infra

note 57.

20

See Uber Rider Might Lose an Eye, supra note 11; Miller, supra note 14.

21

See infra Part III(A).

22

See infra Part III(B).

MARCH 2017]Uber and the Communications Decency Act 295

content provider in the ride-sharing arrangement and is thus

disqualified from Communications Decency Act immunity.

23

Uber has been involved in a high-profile class action lawsuit brought by its

drivers in California and Massachusetts, in which the drivers argued that they

had been misclassified as independent contractors working for Uber, while they

should have been classified as employees instead. See Shannon Liss-Riordan &

Adelaide Pagano, Breaking News, UBER LAWSUIT 1, 1 (2016),

http://uberlawsuit.com/Breaking%20news%20-

%20Uber%20will%20pay%20$100%20million%20to%20settle%20independent

%20contractor%20misclassification%20claims.pdf. Legal experts disagree as to

the effect of the classification of these drivers on Uber’s immunity under the

Communications Decency Act. One view is that if drivers were to be classified

as employees, Uber may very well be legally responsible under respondeat

superior for the accidents and injuries caused by its drivers. See Venkat

Balasubramani, Court Says Uber and Lyft Drivers May Be Employees, TECH. &

MKTG. L. BLOG (Mar. 24, 2015),

http://blog.ericgoldman.org/archives/2015/03/court-says-uber-and-lyft-drivers-

may-be-employees.htm.

But Professor Eric Goldman, an Internet Law scholar, opines in his Technology

& Marketing Law Blog that the Communications Decency Act may still

immunize Uber from liability even if its drivers are classified as employees. See

Eric Goldman, Is Uber Liable When Drivers Sexually Abuse Passengers?, TECH.

& MKTG. L. BLOG (May 17, 2016),

http://blog.ericgoldman.org/archives/2016/05/is-uber-liable-when-drivers-

sexually-abuse-passengers-forbes-cross-post.htm. A proposed settlement of

$100 million in the Uber class action suit was rejected by the court in August

2016. See Order Denying Plantiffs’ Motion for Preliminary Approval at 34,

O’Connor v. Uber Techs., Inc., No. 13-cv-03826-EMC (N.D. Cal. Aug. 18,

2016). But even if a new agreement were to be reached (possibly for a much

smaller class due to a recent Ninth Circuit ruling that the drivers would be bound

by arbitration), such a settlement would leave unresolved the legal issue of

whether the drivers are independent contractors or employees. See Goldman,

supra; Liss-Riordan & Pagano, supra. See generally Mohamed v. Uber Techs.,

Inc., 836 F.3d 1102 (9th Cir. 2016). It is worth noting that the California Labor

Commissioner’s Office, in considering the issue on a separate matter, ruled that

Uber drivers are employees of the company. See Order, Decision or Award of

the Labor Commissioner at 10, Berwick v. Uber Techs., Inc., No. 11-46739 EK

(Labor Comm’r Cal. June 3, 2015); Mike Isaac & Natasha Singer, California

Says Uber Driver Is Employee, Not a Contractor, N.Y. TIMES (June 17, 2015),

http://www.nytimes.com/2015/06/18/business/uber-contests-california-labor-

ruling-that-says-drivers-should-be-employees.html?_r=0.). On the heels of the

aforementioned lawsuit, a new class action lawsuit on the same issue of driver

status misclassification was recently filed in a federal district court in Illinois by

!

296 N.C. J.L. & TECH. [VOL. 18: 290

Part I of this article discusses the rise of Uber and the sharing

economy. Part II discusses the Communications Decency Act and

how courts have interpreted its provisions. Part III explores how

the Communications Decency Act would be applied to Uber and

why Uber would not be immune under the statute.

I. UBER AND THE SHARING ECONOMY

Uber is a ride-sharing app company, self-described as “a

technology platform . . . [that] connect[s] driver-partners and

riders”

24

through a smartphone app. The company’s rapid rise in its

short history is astounding. Since the company’s founding in

2009,

25

it has grown to expand operations in 540 cities around the

world,

26

taking the taxi and rental car industries by storm

27

(or

drivers outside of California and Massachusetts. See Megan Rose Dickey, Uber

Is Facing a Nationwide Class-Action Lawsuit, TECHCRUNCH (May 2, 2016),

http://techcrunch.com/2016/05/02/uber-is-facing-a-nationwide-class-action-

lawsuit/; Erik Sherman, Uber Faces New Class Action Suit by Drivers, FORBES

(May 4, 2016, 5:30 AM),

http://www.forbes.com/sites/eriksherman/2016/05/04/will-a-new-class-action-

suit-change-uber-or-cause-drivers-to-permanently-lose/#6212eb71277a.

24

How Does Uber Work?, supra note 7; see also Stephanie Francis Ward,

‘App’ Me a Ride, 100 A.B.A. J., Jan. 2014, at 13–14, 17.

25

See Travis Kalanick, Uber’s Founding, UBER NEWSROOM (Dec. 22, 2010),

https://newsroom.uber.com/ubers-founding/.

26

Our Story, UBER, https://www.uber.com/our-story (last visited Nov. 17,

2016).

27

See, e.g., Andrew Bender, Uber’s Astounding Rise: Overtaking Taxis in

Key Markets, FORBES (Apr. 10, 2015, 11:42 AM),

http://www.forbes.com/sites/andrewbender/2015/04/10/ubers-astounding-rise-

overtaking-taxis-in-key-markets/#ac00acd22ef6; Jon Liss, Uber and the Taxi

Industry’s Last Stand, THE NATION (Jan. 27, 2015),

http://www.thenation.com/article/uber-and-taxi-industrys-last-stand/; Dana

Rubinstein, Uber, Lyft, and the End of Taxi History, POLITICO (Oct. 30, 2014,

5:27 AM), http://www.politico.com/states/new-york/city-

hall/story/2014/10/uber-lyft-and-the-end-of-taxi-history-017042; Olivia Zaleski,

Uber Overtakes Rental Cars Among Business Travelers, BLOOMBERG (Apr. 21,

2016, 3:44 PM), http://www.bloomberg.com/news/articles/2016-04-21/uber-

overtakes-rental-cars-among-business-travelers.

MARCH 2017]Uber and the Communications Decency Act 297

“disrupting” the industries, as the tech lingo goes),

28

and has

caused massive protests and demonstrations by taxi drivers the

world over.

29

One of Silicon Valley’s biggest success stories

30

and

28

Compare Clayton M. Christensen et al., What Is Disruptive Innovation?,

HARV. BUS. REV. (Dec. 2015), https://hbr.org/2015/12/what-is-disruptive-

innovation, with Alex Moazed & Nicholas L. Johnson, Why Clayton Christensen

Is Wrong About Uber and Disruptive Innovation, TECHCRUNCH (Feb. 27, 2016),

http://techcrunch.com/2016/02/27/why-clayton-christensen-is-wrong-about-

uber-and-disruptive-innovation/.

29

See, e.g., Anti-Uber Protests Around the Worlds, in Pictures, THE

TELEGRAPH, http://www.telegraph.co.uk/technology/picture-

galleries/11902080/Anti-Uber-protests-around-the-world-in-pictures.html (last

visited June 14, 2016); Lori Aratani, Downtown D.C. Traffic Gridlocked as Taxi

Drivers Protest Uber, Lyft, Sidecar, WASH. POST (June 25, 2014),

https://www.washingtonpost.com/news/dr-gridlock/wp/2014/06/25/d-c-taxi-

drivers-stage-caravan-to-protest-uber-lyft-sidecar/; Bogota Taxi Drivers Protest

Against Uber, EURONEWS (Mar. 15, 2016, 2:50 AM),

http://www.euronews.com/2016/03/15/bogota-taxi-drivers-protest-against-uber/;

Traffic Chaos and Violence as Thousands of Taxi Drivers Protest Against Uber

in Jakarta, THE GUARDIAN (Mar. 22, 2016, 2:23 AM),

https://www.theguardian.com/world/2016/mar/22/traffic-chaos-and-violence-as-

thousands-of-taxi-drivers-protest-uber-in-jakarta; Gwyn Topham, Black-Cab

Drivers’ Uber Protest Brings London Traffic to a Standstill, THE GUARDIAN

(Feb. 10, 2016, 1:13 PM),

https://www.theguardian.com/technology/2016/feb/10/black-cab-drivers-uber-

protest-london-traffic-standstill.

30

See Jason Cieslak, What We Can Learn from Uber’s Logo Debacle, FORBES

(Feb. 4, 2016, 5:07 PM),

http://www.forbes.com/sites/groupthink/2016/02/04/what-we-can-learn-from-

ubers-logo-debacle/#56e7576e2fa8; Maya Kosoff, Has Uber Finally Met Its

Match?, VANITY FAIR (Feb. 25, 2016, 2:54 PM),

http://www.vanityfair.com/news/2016/02/has-uber-finally-met-its-match; Sarah

McBride, Ride Service Uber, Brash Darling of Silicon Valley, Stalks New

Markets, REUTERS (Jan. 2, 2014, 1:46 PM), http://www.reuters.com/article/us-

transport-uber-idUSBREA010SP20140102.

298 N.C. J.L. & TECH. [VOL. 18: 290

one of the most powerful companies in the country,

31

Uber was

valued at $62.5 billion at the end of 2015.

32

The app works as follows: A user, a would-be passenger, logs

into the app when he needs a ride,

33

entering his destination into

the app.

34

Another user interested in giving him a ride, a would-be

driver, connects with him on the app and starts driving to the

passenger’s location to pick him up and drive him to his

destination.

35

While Uber allows the driver to accept (or not

accept) the passenger’s ride request,

36

the passenger cannot choose

31

Dylan Roach & Alex Morrell, The 50 Most Powerful Companies in

America, BUS. INSIDER (Oct. 22, 2015, 12:28 PM),

http://www.businessinsider.com/50-most-powerful-companies-in-america-2015-

10.

32

Mike Isaac & Leslie Picker, Uber Valuation Put at $62.5 Billion After a

New Investment Round, N.Y. TIMES (Dec. 3, 2015),

http://www.nytimes.com/2015/12/04/business/dealbook/uber-nears-investment-

at-a-62-5-billion-valuation.html?_r=1.

33

See Meyer v. Kalanick, 15 Civ. 9796, 2016 U.S. Dist. LEXIS 43944, at *4

(S.D.N.Y. Mar. 31, 2016); How Does Uber Work?, supra note 7. In most cities,

the ride is booked on demand: when the passenger needs the ride and only then.

Hence in those cities, the app does not allow for ride reservations. See Can I

Make a Reservation?, UBER, https://help.uber.com/h/63165ec1-0910-409e-972f-

0b8d8df1a605 (last visited Nov. 17, 2016).

34

Requesting and Taking an Uber Ride, UBER,

https://help.uber.com/h/2a9d2594-3aea-4f66-9724-32d0da1868d5, (last visited

Nov. 17, 2016).

35

See Meyer, 2016 U.S. Dist. LEXIS 43944, at *4; Requesting and Taking an

Uber Ride, supra note 34.

36

Uber sends the ride request from the passenger to the closest driver, and that

driver has to accept the ride request before the ride between passenger and

driver is arranged. The driver reportedly has fifteen seconds to accept the

request before it is automatically sent to another driver nearby. See Can I

Request a Specific Driver?, UBER, https://help.uber.com/h/1aaf0913-484f-4695-

9042-e61fc7613f24 (last visited Nov. 17, 2016); James Cook, Uber’s Internal

Charts Show How Its Driver-Rating System Actually Works, BUS. INSIDER (Feb.

11, 2015, 11:53 AM), http://www.businessinsider.com/leaked-charts-show-how-

ubers-driver-rating-system-works-2015-2#ixzz3gpV8n1sK. Likely to promote

the speed and efficiency of ride connections, and therefore of the app itself, it

has been reported that Uber demands drivers maintain a ride request acceptance

rate of at least eighty percent. Cook, supra. But see Rachel Emma Silverman &

Lauren Weber, Uber Reaches a Tipping Point with Its Drivers, WALL STREET J.

!

MARCH 2017]Uber and the Communications Decency Act 299

his driver.

37

The only way for a passenger to get another driver is

by aborting the ride request and starting over.

38

Uber sets the price of the ride, which is determined by its

algorithm based on supply and demand at the time the app user

requests a ride.

39

At the end of the ride, the app automatically

(Apr. 24, 2016, 10:30 PM), http://www.wsj.com/articles/uber-reaches-a-tipping-

point-with-its-drivers-1461490205 (reporting that Uber will soon relax its

requirement for drivers to maintain a high ride request acceptance rate).

Furthermore, the passenger’s destination would not be disclosed to the driver

until after the passenger is picked up, likely to ensure that passengers are

reliably picked up when using the app (as opposed to allowing drivers to shop

for passengers whose destinations are more convenient to them), thus promoting

passengers’ satisfaction with the app. See Harry Campbell, Just How Far Is

Your Uber Driver Willing To Take You?, FORBES (Mar. 24, 2015, 12:33 PM),

http://www.forbes.com/sites/harrycampbell/2015/03/24/just-how-far-is-your-

uber-driver-willing-to-take-you/#5a0e7075346e; Jessica Hullinger, 16 Things

You Might Not Know About Uber and Its Drivers, MENTAL FLOSS (Jan. 19, 2016,

11:17 AM), http://mentalfloss.com/article/67010/16-things-you-might-not-

know-about-uber-and-its-drivers; Jason Koebler, Anatomy of a Seven-Hour,

$583 Uber Ride, MOTHERBOARD (June 17, 2015, 10:24 AM),

http://motherboard.vice.com/read/anatomy-of-a-seven-hour-583-uber-ride; Joe

Strandell, Can You Beat My Longest Uber Ride Ever?, THE RIDESHARE GUY

(Mar. 17, 2015), http://therideshareguy.com/can-you-beat-my-longest-uber-ride-

ever/.

37

Can I Request a Specific Driver?, supra note 36; see also Can I Make a

Reservation?, supra note 33. United States Senator Ben Sasse made headlines

recently when he decided to drive for Uber for a day to spend time with and

listen to his constituents. One of his passengers, a college student named Adrian

Silva, reported that he was pleasantly surprised upon seeing on the screen that he

was being picked up by Senator Sasse himself. Silva initially thought that this

was a joke, before realizing that it was not. Silva’s reaction of surprise and

initial disbelief makes sense in the context of the fact that Uber passengers do

not choose their drivers. See Cora Lewis, This Guy Got in an Uber and

Discovered His Driver Was a U.S. Senator, BUZZFEED NEWS (Nov. 13, 2016,

3:18 PM), https://www.buzzfeed.com/coralewis/uber-

senator?utm_term=.glKzvA15V#.ry4r5e9py.

38

See Can I Request a Specific Driver?, supra note 36; Cancelling an Uber

Ride, UBER, https://help.uber.com/h/56270015-1d1d-4c08-a460-3b94a090de23

(last visited Nov. 17, 2016).

39

Meyer, 2016 U.S. Dist. LEXIS 43944, at *4; Johanna Interian, Note, Up in

the Air: Harmonizing the Sharing Economy Through Airbnb Regulations, 39

B.C. INT’L & COMP. L. REV. 129, 152-53 (2016); see also How Are Fares

!

300 N.C. J.L. & TECH. [VOL. 18: 290

charges the passenger’s credit card on file.

40

Uber then retains a

percentage of the fare as a fee

41

and sends the remainder to the

driver.

42

Thus, the system does not allow for negotiations on the

fare between users.

43

After the ride, the passenger and the driver rate each other on

the app.

44

Drivers with poor ratings

45

may have their accounts

deactivated by Uber.

46

Calculated?, UBER, https://help.uber.com/h/33ed4293-383c-4d73-a610-

d171d3aa5a78 (last visited Nov. 17, 2016); Dan Kedmey, This Is How Uber’s

‘Surge Pricing’ Works, TIME (Dec. 15, 2014), http://time.com/3633469/uber-

surge-pricing/; What Is Dynamic Pricing?, UBER,

https://help.uber.com/h/34212e8b-d69a-4d8a-a923-095d3075b487 (last visited

Nov. 17, 2016).

40

Meyer, 2016 U.S. Dist. LEXIS 43944, at *4.

41

The fee is typically between twenty to twenty-five percent of the fare.

Silverman & Weber, supra note 36; see also Hullinger, supra note 36.

42

Meyer, 2016 U.S. Dist. LEXIS 43944, at *4.

43

Tipping is not included in the fare, and the practice is not compulsory. In

fact, the app was originally designed so that no cash would change hands

between users. See Can the Uber App Tip My Driver?, UBER,

https://help.uber.com/h/f7385bf5-1748-4fd0-a57f-3d9b62facc45 (last visited

Nov. 17, 2016) (clarifying that tipping is voluntary and emphasizing that “in

most cities, Uber is a cashless experience”). Indeed, tipping is a relatively recent

practice for Uber users as Uber has only recently allowed passengers to tip

drivers, following its $100 million settlement of a class action suit with its

drivers in April 2016. Silverman & Weber, supra note 36. Even with the new

practice of tipping, however, Uber has stated that it had no plans to incorporate

tipping into its app, which would preserve the price-setting of the fare as being

under the exclusive domain of Uber. See id.

44

Driver Deactivation Policy—US ONLY, UBER,

https://www.uber.com/legal/deactivation-policy/us-multi-lingual/en/ (last visited

June 15, 2016); How Does Uber Work?, supra note 7; see also Hullinger, supra

note 36.

45

A bad rating was once defined by Uber’s San Francisco office, in an

internal document leaked to the media, as less than a “4.6” on a scale of 1 to 5.

Cook, supra note 36. A “4.6” also seems to be the rating required of drivers in

Melbourne, Australia. See How To Get 5-Star Rating?, UBER MELBOURNE,

https://drive.uber.com/melbourne/how-can-we-help/how-to-uber/vicquality/

(last visited June 16, 2016). Uber does state on its website, however, that the

required minimum average rating varies in different cities, allowing for cultural

!

MARCH 2017]Uber and the Communications Decency Act 301

Uber is part of the larger so-called sharing economy,

sometimes called “gig”

47

or “on-demand” economy,

48

a

marketplace that is increasingly characterized by users of a

communications platform sharing their resources with each

other—everything from homes to goods to transportation.

49

Airbnb,

for example, is a popular website that connects travelers seeking a

space to stay with hosts who list an available space, whether a

private room, an entire house, “tree houses in the woods . . . or

enchanted castles.”

50

Users (both hosts and guests) rate each other,

allowing the community to build trust and to measure other users’

dependability.

51

StubHub, another popular website, is an online

differences in how users rate each other in the different locales. Driver

Deactivation Policy—US ONLY, supra note 44.

46

Driver Deactivation Policy—US ONLY, supra note 44; see also Harry

Campbell, 11 Things That Can Get You Deactivated as an Uber Driver, THE

RIDESHARE GUY (Oct. 19, 2015), http://therideshareguy.com/10-things-that-can-

get-you-deactivated-as-an-uber-driver/; Cook, supra note 36.

47

Eric Goldman, Top 10 Internet Law Developments of 2015, TECH. & MKTG.

L. BLOG (Feb. 1, 2016), http://blog.ericgoldman.org/archives/2016/02/top-10-

internet-law-developments-of-2015-forbes-cross-post.htm.

48

Zalmi Duchman, The On-Demand Economy Is Here To Stay, and Now Is

the Time To Put It To Use for Your Business, FORBES (July 14, 2015, 10:00 AM),

http://www.forbes.com/sites/zalmiduchman/2015/07/14/the-on-demand-

economy-is-here-to-stay-and-now-is-the-time-to-put-it-to-use-for-your-

business/#621c0c5143f8.

49

Brittany McNamara, Note, Airbnb: A Not-So-Safe Resting Place, 13 J. ON

TELECOMM. & HIGH TECH. L. 149, 151 (2015); see Charles Green, Trusting and

Being Trusted in the Sharing Economy, FORBES (May 2, 2012, 2:01 PM),

http://www.forbes.com/sites/trustedadvisor/2012/05/02/trusting-and-being-

trusted-in-the-sharing-economy/#703be2e6608a; Randy White, The Sharing

Economy: “Plan B” for Moving America Forward, TEDXSOMA (June 28,

2011), https://www.youtube.com/watch?v=p2yXFmcl7V8.

50

Who Can Host on Airbnb?, AIRBNB,

https://www.airbnb.com/help/article/18/who-can-host-on-airbnb (last visited Feb.

07, 2017); see also McNamara, supra note 49, at 151–55; Tomio Geron, Airbnb

and the Unstoppable Rise of the Share Economy, FORBES (Jan. 23, 2013, 7:00

AM), http://www.forbes.com/sites/tomiogeron/2013/01/23/airbnb-and-the-

unstoppable-rise-of-the-share-economy/#3ec449326790.

51

How Do Reviews Work?, AIRBNB,

https://www.airbnb.com/help/article/13/how-do-reviews-work (last visited Nov.

17, 2016); see also It All Starts with Our Standards, AIRBNB,

!

302 N.C. J.L. & TECH. [VOL. 18: 290

ticket marketplace, connecting users who are selling tickets to

sports games, concerts, or shows with other users seeking to buy

the tickets.

52

Uber and the web-based sharing economy have grown so

rapidly that there is much uncertainty surrounding how different

laws and regulations should be applied to them.

53

Of interest in this

article is how the immunity under the Communications Decency

Act would be applied to Uber.

II. THE COMMUNICATIONS DECENCY ACT

The Communications Decency Act provides 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.”

54

Enacted by Congress in 1996, a

key rationale is to promote the development of the then-nascent

Internet

55

and to “encourage the development of technologies

which maximize user control over what information is received by

individuals . . . who use the Internet and other interactive computer

services.”

56

Originally passed to protect interactive computer

services from defamatory content provided by third-party users,

the statute has been expansively applied beyond defamation suits

to protect interactive computer services from fraud, negligence,

https://www.airbnb.com/trust (last visited Nov. 17, 2016); McNamara, supra

note 49, at 152.

52

About Us, STUBHUB, http://www.stubhub.com/about-us/ (last visited June

14, 2016); see also Matthew Feuerman, Note, Court-Side Seats? The

Communications Decency Act and the Potential Threat to StubHub and Peer-to-

Peer Marketplaces, 57 B.C. L. REV. 227, 228–29 (2016).

53

See Virginia A. Fitt, Electronic Commerce Law: Crowdsourcing the News:

News Organization Liability for iReporters, 37 WM. MITCHELL L. REV. 1839,

1858 (2011); Interian, supra note 39, at 151–53, 156. See generally McNamara,

supra note 49, at 154–55, 159–70.

54

47 U.S.C. § 230(c)(1) (2012).

55

See id. § (b)(1).

56

Id. § (b)(3).

MARCH 2017]Uber and the Communications Decency Act 303

intentional infliction of emotional distress, misrepresentation, and

invasion of privacy.

57

Courts have employed a three-pronged test in assessing

whether a defendant should receive immunity under the

Communications Decency Act. A defendant is protected under the

statute when (1) the defendant is a provider or user of an

interactive computer service, (2) the information for which the

plaintiff is suing is provided by another information content

provider, and (3) the lawsuit seeks to treat the defendant as the

publisher or speaker of that information.

58

A closer look at each

prong follows.

A. What Is a Provider of an Interactive Computer Service?

An interactive computer service is defined by the statute as

“any information service, system, or access software provider that

provides or enables computer access by multiple users to a

computer server, including specifically a service or system that

provides access to the Internet . . . .”

59

57

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254

(4th Cir. 2009); Doe v. MySpace, Inc., 528 F.3d 413, 418–19 (5th Cir. 2008);

Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007);

Doe v. SexSearch.com, 502 F. Supp. 2d 719, 726–33 (N.D. Ohio 2007); Doe v.

Bates, No. 5:05-CV-91-DF-CMC, 2006 WL 3813758, at *21 (E.D. Tex. Dec. 27,

2006); Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 539 (E.D. Va.

2003); Matthew Altenberg, Note, Playing the Mysterious Game of Online Love:

Examining an Emerging Trend of Limiting § 230 Immunity of the

Communications Decency Act and the Effects on E-Dating Websites, 32 PACE L.

REV. 922, 938–39 (2012); Feuerman, supra note 52, at 234 (“Originally applied

predominantly to defamation cases, CDA immunity has been interpreted to

apply to any civil suit claiming vicarious liability for websites.”); Dan

Malachowski, Comment, “Username Jacking” in Social Media: Should

Celebrities and Brand Owners Recover from Social Networking Sites when

Their Social Media Usernames Are Stolen?, 60 DEPAUL L. REV. 223, 233–34

(2010).

58

Jones v. Dirty World Entm’t Recordings, L.L.C., 755 F.3d 398, 409 (6th Cir.

2014); Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014); Lycos,

Inc., 478 F.3d at 418; Hill v. StubHub, Inc., 727 S.E.2d 550, 556 (N.C. Ct. App.

2012).

59

§ 230(f)(2).

304 N.C. J.L. & TECH. [VOL. 18: 290

Courts have adopted an “expansive definition” of a provider of

an interactive computer service.

60

A website, not surprisingly, is a

provider of an interactive computer service as it “functions as an

intermediary by providing a forum for the exchange of information

between third[-]party users.”

61

The designation has also included

websites that host message boards

62

(even the employer’s e-mail

system),

63

as well as websites that invite or encourage user

comments.

64

More specifically, the designation of a provider of an

interactive computer service has been applied to Internet service

providers and search engines such as Google,

65

Yahoo,

66

and

AOL;

67

retail sites such as Amazon

68

and eBay,

69

in which users

“conduct sales transactions” and “provide information (feedback)

about other users of the service”;

70

Craigslist, an Internet bulletin

60

Cornelius v. DeLuca, 709 F. Supp. 2d 1003, 1021 (D. Idaho 2010); see

Optinrealbig.com, L.L.C. v. Ironport Sys., 323 F. Supp. 2d 1037, 1044 (N.D.

Cal. 2004) (“Courts construing § 230(f)(2) have recognized that the definition

includes a wide range of cyberspace services, not only internet service

providers.”). This article focuses on the “provider” aspect of an interactive

computer service, not the “user” aspect, as this article seeks to explore Uber’s

liability under the Communications Decency Act, and Uber would be a provider,

not a user of its own service. See infra Part III.

61

Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 848 (W.D. Tex. 2007).

62

Universal Commc’n Sys., Inc., 478 F.3d at 419; Dimeo v. Max, 248 F.

App’x. 280, 282 (3d Cir. 2007); Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir.

2003).

63

Delfino v. Agilent Tech., Inc., 52 Cal. Rptr. 3d 376, 389 (Ct. App. 2006).

64

Spreadbury v. Biterroot Pub. Library, 856 F. Supp. 2d 1195, 1198 (D. Mont.

2012).

65

Jurin v. Google, Inc., 695 F. Supp. 2d 1117, 1122–23 (E.D. Cal. 2010);

Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1197–99 (N.D. Cal. 2009);

Parker v. Google, Inc., 422 F. Supp. 2d 492, 500–01 (E.D. Pa. 2006).

66

Stayart v. Yahoo!, Inc., 651 F. Supp. 2d 873, 885 (E.D. Wis. 2009).

67

Zeran v. Am. Online, Inc., 129 F.3d 327, 329 (4th Cir. 1997).

68

Joseph v. Amazon.com, Inc., 46 F. Supp. 3d 1095, 1105–07 (W.D. Wash.

2014); Schneider v. Amazon.com, Inc., 31 P.3d 37, 43 (Wash. Ct. App. 2001).

69

Gentry v. eBay, Inc., 121 Cal. Rptr. 2d 703, 714 n.7 (Ct. App. 2002).

70

Id.

MARCH 2017]Uber and the Communications Decency Act 305

board site;

71

Yelp, an online review website;

72

an online dating

website;

73

social media sites such as Facebook

74

and MySpace;

75

and sharing economy sites such as StubHub

76

and eBay.

77

B. Who Provided the Content?

There is no immunity under the Communications Decency Act

if the online entity itself is the one providing the content, because

the content must have originated from “another information

content provider.”

78

An information content provider is defined by

the statute as “any person or entity that is responsible, in whole or

in part, for the creation or development of information provided

through the Internet or any other interactive computer service.”

79

Content “creation” is easier to define than content

“development,”

80

both of which are subsumed under the

Communications Decency Act’s definition of information content

71

Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc.,

519 F.3d 666, 671–72 (7th Cir. 2008); Dart v. Craigslist, Inc., 665 F. Supp. 2d

961, 965 (N.D. Ill. 2009); Gibson v. Craigslist, Inc., No. 08 Civ. 7735 (RMB),

2009 U.S. Dist. LEXIS 53246, at *10 (S.D.N.Y. June 15, 2009).

72

Kimzey v. Yelp!, Inc., 21 F. Supp. 3d 1120, 1123 (W.D. Wash. 2014); Reit

v. Yelp!, Inc., 907 N.Y.S.2d 411, 413–14 (Sup. Ct. 2010).

73

See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123–24 (9th Cir.

2003).

74

Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014).

75

Doe v. MySpace, Inc., 528 F.3d 413, 422 (5th Cir. 2008).

76

Hill v. StubHub, Inc., 727 S.E.2d 550, 557 (N.C. Ct. App. 2012).

77

Gentry v. eBay, Inc., 121 Cal. Rptr. 2d 703, 714 n.7 (Ct. App. 2002).

78

47 U.S.C. § 230(c)(1) (2012); see Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009); MySpace, Inc.,

528 F.3d at 418–19; Green v. Am. Online, Inc., 318 F.3d 465, 471 (3d Cir.

2003); Batzel v. Smith, 333 F.3d 1018, 1030–31, 1031 n.19 (9th Cir. 2003);

Carafano, 339 F.3d at 1123–24; Ben Ezra, Weinstein, & Co. v. Am. Online, Inc.,

206 F.3d 980, 984–86 (10th Cir. 2000); Zeran v. Am. Online, Inc., 129 F.3d 327,

330–31 (4th Cir. 1997).

79

§ 230(f)(3) (emphasis added).

80

Feuerman, supra note 52, at 233; Eric Weslander, Comment, Murky

“Development”: How the Ninth Circuit Exposed Ambiguity Within the

Communications Decency Act, and Why Internet Publishers Should Worry, 48

WASHBURN L.J. 267, 291 (2008).

306 N.C. J.L. & TECH. [VOL. 18: 290

provider.

81

Certainly a third-party user of a social media site who

posts on the site is the creator of that content (the content being the

post), and the user would therefore be “another information content

provider” under the statute.

82

In Doe v. MySpace, Inc., for example,

a minor misrepresented her age as eighteen years old on the social

media website MySpace, which led to an adult contacting her

through the site, subsequently meeting her in person and sexually

assaulting her.

83

When the minor’s mother sued MySpace, the Fifth

Circuit affirmed a lower court’s ruling that protected MySpace

from liability under the statute because the minor was the creator

of her own profile.

84

As websites have become more interactive, however, as one

commentator put it, “the line between the website and the users of

the website blurs.”

85

This is evident in Fair Housing Council of

San Fernando Valley v. Roommates.com, L.L.C.,

86

the seminal

Ninth Circuit case that defines what it means to be an information

content provider by way of developing content, rather than creating

it.

87

81

See § 230(f)(3).

82

Klayman v. Zuckerberg, 753 F.3d 1354, 1358 (D.C. Cir. 2014); Johnson v.

Arden, 614 F.3d 785, 791 (8th Cir. 2010); Nemet Chevrolet, Ltd., 591 F.3d at

254–55.

83

MySpace, Inc., 528 F.3d at 416.

84

Id. at 420, 422. The court rejected the plaintiff’s argument that MySpace

shared the creation of the content with the minor user due to the site’s

facilitating the creation of users’ profiles through a questionnaire and due to the

site’s search feature, ultimately because the plaintiff had failed to present the

argument to the lower court. Id. at 422. The court did, however, signal that the

argument would not have been a winning one. See id. at 420.

85

Weslander, supra note 80, at 293.

86

521 F.3d 1157 (9th Cir. 2008).

87

Id. at 1162–63. Roommates.com, a website that connected renters with

those looking for roommates, was held to be a content provider when the

website created discriminatory questions and choice of answers, forcing users to

participate in them by answering the questions as a requirement of using the

website. Id. at 1161–62, 1163, 1167. The Ninth Circuit emphasized that the

structure of the website was such that it did not merely provide a framework

which users could then freely use for whatever purpose, be it illegal. Id. at 1172.

The Ninth Circuit contrasted its holding in Roommates with its holding in

!

MARCH 2017]Uber and the Communications Decency Act 307

Of content development and immunity under the statute, the

court in Roommates stated, “The message to website operators is

clear: If you don’t encourage illegal content, or design your

website to require users to input illegal content, you will be

immune.”

88

In light of this rule, two different tests have been

employed by other courts in determining whether a website’s

content development precludes it from enjoying immunity under

the Communications Decency Act.

Under the more relaxed “encouragement” test, merely

encouraging or inducing the development of illegal content, as

contrasted with providing a neutral framework for users, would

result in the website being deemed a developer of that content and

thus an information content provider.

89

Under the more stringent

“requirement” test, a website must have materially contributed to

the illegal content by requiring users to post the content for it to be

deemed a developer of the content and an information content

provider.

90

Carafano v. Metrosplash.com, Inc., in which the defendant dating website was

found not to be a content provider when the website had created the framework

of site usage in the form of questions that users must fill out to use the service,

but the offensive content at issue was created solely by the user. Id. at 1171–72;

cf. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122–24 (9th Cir. 2003).

Although the facts of the case are similar to Roommates, the critical difference is

that in Carafano, the website-created framework did not have to do with the

offensive content at issue—the website played no part in encouraging or

requiring the illegal act. Roommates.com, 521 F.3d at 1172.

88

Roommates.com, 521 F.3d at 1175 (emphasis added).

89

Jeffrey R. Doty, Note, Inducement or Solicitation? Competing

Interpretations of the “Underlying Illegality” Test in the Wake of Roomates.com,

6 WASH. J.L. TECH. & ARTS 125, 126–27, 130–32, 136 (2010); Ryan J. P. Dyer,

Comment, The Communication[s] Decency Act Gone Wild: A Case for

Renewing the Presumption Against Preemption, 37 SEATTLE U. L. REV. 837,

845, 860 (2014); Feuerman, supra note 52, at 238; see, e.g., Jones v. Dirty

World Entm’t Recordings, L.L.C., 755 F.3d 398, 414–15 (6th Cir. 2014).

90

Doty, supra note 89, at 126–27, 130–32; Dyer, supra note 89; Feuerman,

supra note 52, at 239; see, e.g., Jones, 755 F.3d at 413–17. For example,

Amazon was not a content provider when it provided tools through its zShops

platform for third-party users to post information on its site and furthermore

encouraged users to use these tools, because users ultimately made their own

!

308 N.C. J.L. & TECH. [VOL. 18: 290

The Ninth Circuit took a rather novel and expansive

interpretation of the statute in Roommates,

91

and the case has been

criticized for its “vague and varying articulations” with regard to

the basis of liability, which has led to the two different tests

above.

92

The dissent in Roommates also criticizes the majority for

adding the requirement that the content be unlawful for immunity

to attach, when in fact the Communications Decency Act has no

such requirement in its language.

93

The dissent points out that the

statute examines only whether the content was provided by the

website, which would be independent from the inquiry of whether

the content was unlawful.

94

While the issue in Roommates has to

do with the liability of an information content provider specifically

by way of developing content,

95

this unlawfulness requirement has

decision about what information to put on the site. Corbis Corp. v. Amazon.com,

Inc., 351 F. Supp. 2d 1090, 1118 (W.D. Wash. 2004).

91

Feuerman, supra note 52, at 237; Weslander, supra note 80, at 291.

92

Doty, supra note 89, at 130; see Dyer, supra note 89, at 844; see also

Weslander, supra note 80, at 290–94.

93

Roommates.com, 521 F.3d at 1182–83 (McKeown, J., dissenting).

94

Id.

[The majority’s] definition is original to say the least and springs forth

untethered to anything in the statute.

The . . . definition of “development” epitomizes its consistent

collapse of substantive liability with the issue of immunity. Where in

the statute does Congress say anything about unlawfulness? Whether

Roommate is entitled to immunity for publishing and sorting profiles is

wholly distinct from whether Roommate may be liable for violations of

the FHA. Immunity has meaning only when there is something to be

immune from, whether a disease or the violation of a law. It would be

nonsense to claim to be immune only from the innocuous. But the

majority’s immunity analysis is built on substantive liability: to the

majority, CDA immunity depends on whether a webhost

materially contributed to the unlawfulness of the information. Whether

the information at issue is unlawful and whether the webhost has

contributed to its unlawfulness are issues analytically independent of

the determination of immunity. Id.

95

Id. at 1162–63 (majority opinion).

MARCH 2017]Uber and the Communications Decency Act 309

been picked up and attached to the broader definition of

information content provider.

96

It is noteworthy that websites are free to edit content provided

by third-party users without incurring liability as information

content provider.

97

This editing function includes choosing which

content authored by third-party users would be published on the

site,

98

making minor alterations to the content,

99

deleting errors

found in the content,

100

and making selective content deletion.

101

Additionally, courts have been clear that a website is not a

content provider when it “provides a neutral means by which third

parties can post information of their own independent choosing

online.”

102

For example, sharing economy website StubHub

103

was

not a content provider when its pricing tool on the website did

nothing more than provide information on the prices of tickets to

the same event that had been sold on the site previously.

104

The

court said that StubHub’s pricing tool was the “prototypically

‘neutral tool’” because it provided information “without suggesting,

much less requiring” users to set any particular price on the

tickets.

105

Rather, third-party sellers as users set their own prices on

the site.

106

Google went a step further than StubHub by providing

suggestions of certain keywords to bidders in its AdWords

program,

107

but it too was found not to have been a content

96

See, e.g., Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,

254 (4th Cir. 2009); Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v.

Craigslist, Inc., 519 F.3d 666, 669 (7th Cir. 2008).

97

See Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003).

98

Barrett v. Fonorow, 799 N.E.2d 916, 926–27 (Ill. App. Ct. 2003).

99

Batzel, 333 F.3d at 1031.

100

Ben Ezra, Weinstein, & Co. v. Am. Online, Inc., 206 F.3d 980, 986 (10th

Cir. 2000).

101

Donato v. Moldow, 865 A.2d 711, 726 (N.J. Super. Ct. App. Div. 2004).

102

Klayman v. Zuckerberg, 753 F.3d 1354, 1358 (D.C. Cir. 2014); see also

Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1196 (N.D. Cal. 2009).

103

See About Us, STUBHUB, supra note 52.

104

Hill v. StubHub, Inc., 727 S.E.2d 550, 562 (N.C. Ct. App. 2012).

105

Id.

106

Id. at 561–62.

107

Jurin v. Google, Inc., 695 F. Supp. 2d 1117, 1123 (E.D. Cal. 2010).

310 N.C. J.L. & TECH. [VOL. 18: 290

provider under the statute because the bidders could still “adopt or

reject [the keywords] at their discretion.”

108

In so doing, the

program merely helped bidders “refine their content,”

109

and so it

was a “neutral tool” for bidders as users of the site.

110

Lastly, it is noteworthy that the court in StubHub found the

sharing economy website

111

immune when its business model was

such that it was a “broker” in connecting users, who were buyers

and sellers of tickets to various events, to conduct their own

transactions (with the sellers setting the price, as discussed

above).

112

Put another way, StubHub’s website was the meeting

place for these users who were interested in buying and selling

tickets, and users were free to make their own interactions and

sales

113

—StubHub did not systematically require certain user

connections or sales to occur, or, conversely, restrict connections

or sales between any particular users.

114

This brokering function is

apparent in Airbnb, for example, being another sharing economy

website, which also neither systematically requires certain user

connections or bookings to occur nor restricts them from

occurring.

115

C. What Is a Publisher?

As the District of Columbia Circuit Court of Appeals explained,

“Although the [Communications Decency Act] does not define

‘publisher,’ its ordinary meaning is ‘one that makes public,’ and

‘the reproducer of a work intended for public consumption.’

Indeed, the very essence of publishing is making the decision

whether to print or retract a given piece of content . . . .”

116

Thus,

108

Id.

109

Id.

110

Id.

111

See About Us, STUBHUB, supra note 52.

112

Hill v. StubHub, Inc.,727 S.E.2d 550, 552, 563 (N.C. Ct. App. 2012).

113

See id. at 552–53, 561–63.

114

See id. at 561–63.

115

See Interian, supra note 39, at 153.

116

Klayman v. Zuckerberg, 753 F.3d 1354, 1359 (D.C. Cir. 2014) (citation

omitted).

MARCH 2017]Uber and the Communications Decency Act 311

the function of a publisher includes choosing what to publish

among proffered material,

117

editing, archiving, caching,

monitoring, screening, providing access to, postponing, and

deleting content

118

—or conversely, deciding not to do anything to

the content at all.

119

The broad definition has, not surprisingly, yielded a

designation of publisher to an array of types of websites, from

Internet service providers and search engines such as Google,

120

Yahoo,

121

and AOL;

122

retail sites like Amazon

123

and eBay;

124

Craigslist, an Internet bulletin board site;

125

Yelp, an online review

website;

126

an online dating website;

127

social media sites such as

Facebook

128

and MySpace;

129

to sharing economy sites such as

StubHub

130

and eBay.

131

117

Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003).

118

See, e.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009); Doe

v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008); Green v. Am. Online, Inc.,

318 F.3d 465, 471 (3d Cir. 2003); Zeran v. Am. Online, Inc., 129 F.3d 327, 330

(4th Cir. 1997); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 631 (D. Del.

2007); Parker v. Google, Inc., 422 F. Supp. 2d 492, 500–01 (E.D. Pa. 2006).

119

Gentry v. eBay, Inc., 121 Cal. Rptr. 2d 703, 706–09, 715 (Ct. App. 2002).

120

See Langdon, 474 F. Supp. 2d at 631; see also Parker, 422 F. Supp. 2d at

500–01.

121

Barnes, 570 F.3d at 1102.

122

Zeran, 129 F.3d at 330.

123

See Joseph v. Amazon.com, Inc., 46 F. Supp. 3d 1095, 1106–07 (W.D.

Wash. 2014); see also Schneider v. Amazon.com, Inc., 31 P.3d 37, 41–42 (Wash.

Ct. App. 2001).

124

Gentry, 121 Cal. Rptr. 2d at 706–09, 715.

125

See Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist,

Inc., 519 F.3d 666, 671–72 (7th Cir. 2008); see also Dart v. Craigslist, Inc., 665

F. Supp. 2d 961, 965–66 (N.D. Ill. 2009); Gibson v. Craigslist, Inc., No. 08 Civ.

7735 (RMB), 2009 U.S. Dist. LEXIS 53246 at *11–12 (S.D.N.Y. June 15, 2009).

126

Reit v Yelp!, Inc., 907 N.Y.S.2d 411, 414 (Sup. Ct. 2010).

127

Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003).

128

Klayman v. Zuckerberg, 753 F.3d 1354, 1359 (D.C. Cir. 2014).

129

Doe v. MySpace, Inc., 528 F.3d 413, 419–20 (5th Cir. 2008).

130

See Hill v. StubHub, Inc., 727 S.E.2d 550, 552, 557 (N.C. Ct. App. 2012).

131

Gentry v. eBay, Inc., 121 Cal. Rptr. 2d 703, 706–09, 715 (Ct. App. 2002).

312 N.C. J.L. & TECH. [VOL. 18: 290

III. WHY UBER WOULD NOT BE IMMUNE UNDER THE

COMMUNICATIONS DECENCY ACT

How would Uber fare under the Communications Decency

Act? Uber has been steadfast in its characterization that it is not a

transportation company, but rather a technology company, one that

provides a ride-sharing platform for users to connect by soliciting

rides from and generate ratings for each other.

132

In other words,

Uber would argue that it would qualify for immunity under the

Communications Decency Act as a tech platform—that it is just

like other tech platforms and websites that have found to be

immune under the statute. As late as 2014, Uber’s in-house

attorney likened getting a ride using the Uber app to arranging a

ride with a friend on Facebook: “If you . . . got in an accident, . . .

the social media site [Facebook] would not be liable.”

133

It is telling that a federal district court in California (in an order

denying Uber’s motion for summary judgment on the issue of

whether Uber’s drivers should be categorized as employees, which

took place before Uber’s ensuing settlement with its drivers)

132

See Order Denying Defendant Uber Techs., Inc.’s Motion for Summary

Judgment at 10, O’Connor v. Uber Techs., Inc., 82 F. Supp. 3d 1133 (N.D. Cal.

Mar. 11, 2015) (No. C-13-3826 EMC); Order, Decision or Award of the Labor

Commissioner at 9, Berwick v. Uber Techs., Inc., No. 11-46739 EK (Labor

Comm’r Cal. June 16, 2015); Ward, supra note 24, at 14; Huet, supra note 11;

Legal Terms and Conditions, UBER, https://www.uber.com/legal/other/US-

terms-pre-Nov-2016/ (last visited June 29, 2016).

The Services constitute a technology platform that enables users of

Uber’s mobile applications or websites provided as part of the Services

(each, an “Application”) to arrange and schedule transportation and/or

logistics services with third party providers of such services, including

independent third party transportation providers and third party

logistics providers under agreement with Uber or certain of Uber’s

affiliates (“Third Party Providers”) . . . . YOU ACKNOWLEDGE

THAT UBER DOES NOT PROVIDE TRANSPORTATION OR

LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION

CARRIER.

Legal Terms and Conditions, supra.

133

Ward, supra note 24, at 14, 17.

MARCH 2017]Uber and the Communications Decency Act 313

rejected Uber’s characterization of itself as merely a technology

company as “fatally flawed.”

134

Uber’s self-definition as a mere “technology company”

focuses exclusively on the mechanics of its platform (i.e.,

the use of internet enabled smartphones and software

applications) rather than on the substance of what Uber

actually does (i.e., enable customers to book and receive

rides). This is an unduly narrow frame. Uber engineered a

software method to connect drivers with passengers, but

this is merely one instrumentality used in the context of its

larger business. Uber does not simply sell software; it sells

rides. Uber is no more a “technology company” than

Yellow Cab is a “technology company” because it uses CB

radios to dispatch taxi cabs, John Deere is a “technology

company” because it uses computers and robots to

manufacture lawn mowers, or Domino Sugar is a

“technology company” because it uses modern irrigation

techniques to grow its sugar cane. Indeed, very few (if any)

firms are not technology companies if one focuses solely

on how they create or distribute their products. If, however,

the focus is on the substance of what the firm actually does

(e.g., sells cab rides, lawn mowers, or sugar), it is clear that

Uber is most certainly a transportation company, albeit a

technologically sophisticated one. In fact, as noted above,

Uber’s own marketing bears this out, referring to Uber as

“Everyone’s Private Driver,” and describing Uber as a

“transportation system” and the “best transportation service

in San Francisco.”

135

Indeed, while some analysts have called for Communications

Decency Act immunity to be extended to Uber, largely as a

measure to protect the growth of the sharing economy industry,

136

134

Order Denying Defendant Uber Techs., Inc.’s Motion for Summary

Judgment, O’Connor, 82 F. Supp. 3d 1133 (No. C-13-3826 EMC).

135

Id. at 10–11.

136

See, e.g., Feuerman, supra note 52, at 242–43; McNamara, supra note 49,

at 166, 169.

314 N.C. J.L. & TECH. [VOL. 18: 290

many have argued for a contraction of Communications Decency

Act immunity as the Internet has grown immensely since the

passage of the Act and argued for a limitation of how the immunity

should be applied to sharing economy businesses in particular.

137

Much is unsettled about how Communications Decency Act

immunity would be fitted to sharing economy businesses,

138

but as

will be shown below, Uber’s particular business model would

disqualify the company from enjoying immunity under the statute.

Uber would likely easily meet the first and third prongs of the

test for immunity: whether the website is a provider of an

interactive computer service

139

and whether the website is the

publisher of the content, respectively.

140

With regard to the first

prong, as courts have been expansive in their definition of a

provider of an interactive computer service,

141

there has been

consistency in finding websites of all types to be providers of an

interactive computer service.

142

StubHub, for example, a sharing

137

Altenberg, supra note 57, at 948–53; Dyer, supra note 89, at 841–42, 855–

58; Interian, supra note 39, at 160–61; see also Weslander, supra note 80, at 278,

284.

“[F]or websites, this [expectation against liability] is codified in law—

they are not legally responsible for what their users publish, according

to the Communications Decency Act, perhaps the most influential law

in the development of the web. That is why Yelp avoids liability when

people post inaccurate or abusive restaurant reviews, and why

YouTube does not have to remove videos that some find offensive.

The law protects online speech, not actions people take in the

offline world. Yet its ethos has permeated Silicon Valley so deeply that

people invoke it even for things that happen offline.

‘These folks grew up in a world where platforms are not

responsible, and then when they go do stuff in the real world, they

expect that to be the case,’ said Ryan Calo, an assistant professor at the

University of Washington law school who studies cyber law.”

Miller, supra note 14.

138

See Fitt, supra note 53; Interian, supra note 39, at 151–53, 156. See

generally McNamara, supra note 49, at 154–55, 159–70.

139

See supra Part II(A).

140

See supra Part II(C).

141

See supra Part II(A).

142

See supra Part II(A).

MARCH 2017]Uber and the Communications Decency Act 315

economy website like Uber, has been found to be a provider.

143

As

Uber provides access to its Internet-based app for its users

(passengers and drivers) and provides a forum through its app for

users to exchange information for the purposes of arranging a

ride,

144

Uber would be a provider of an interactive computer service

under the statute, thus satisfying the first prong.

With regard to the third prong, courts have similarly been

liberal in defining what a publisher is.

145

A generous range of

activities by websites of all types has qualified under the function

of a publisher.

146

Of note, StubHub, again, being a sharing

economy website, has been found to be a publisher.

147

Uber’s

activity in connecting passengers and drivers for their ride on its

app

148

would likely fall under the function of a publisher under the

statute, thus satisfying the third prong.

But Uber would have difficulty meeting the second prong:

whether a third party provided the content on the computer

service.

149

While passengers and drivers do provide some content

as third-party users of the app—first by signing up to use the Uber

app, then by requesting a ride as a passenger and by responding to

a ride request as a driver

150

—Uber also provides content by setting

the price of the ride and by commanding heavy control over user

ride connections.

A. Price-Setting and Providing Content

As Uber sets the price for the ride,

151

Uber creates that piece of

information in the interaction between its third-party users.

Passengers and drivers as users have no say or contribution to the

143

Hill v. StubHub, Inc., 727 S.E.2d 550, 557 (N.C. Ct. App. 2012).

144

See supra Part I.

145

See supra Part II(C).

146

See supra Part II(C).

147

See Hill, 727 S.E.2d at 552, 557.

148

See supra Part I.

149

See supra Part II(B).

150

See supra Part I.

151

See supra note 39.

316 N.C. J.L. & TECH. [VOL. 18: 290

price; this content is created solely by Uber.

152

Uber’s role here as a

content creator is more easily discernible than some other websites’

role as a content developer to an extent that would trigger liability,

as the Roommates court was concerned,

153

because Uber actually

creates the content by setting the price outright.

Neither does Uber’s price-setting mechanism function as a

neutral tool for users, as would be required so as not to be a

content provider.

154

Of the two websites whose mechanisms were

found to be neutral tools discussed previously, StubHub and

Google,

155

it is precisely because StubHub’s pricing tool neither

suggested nor required sellers to sell their event tickets at any

particular price that it was found to be a “neutral tool” for users;

sellers were free to choose whatever price at which to list their

tickets.

156

Similarly, although Google’s AdWords program

provided suggestions of certain keywords, it did not require users

to take up those keywords, and it was found to be a “neutral tool”

for users.

157

Bidders could still “adopt or reject [the keywords] at

their discretion.”

158

Uber’s price-setting mechanism stands in stark contrast to these

two tools: It requires users to agree to a price for the ride set by

Uber through its algorithm without any input from users,

159

and

thus is not a neutral tool for users. As such, this mechanism goes

beyond being an editing function permitted for websites within the

prong

160

(after all, there is no content to edit if users have no input

whatsoever on the price of the ride)—it is providing the content

itself.

152

See supra notes 39, 43.

153

Fair Housing Council of San Fernando Valley v. Roommates.com, L.L.C.,

521 F.3d 1157, 1162–63 (9th Cir. 2008).

154

See supra Part II(B).

155

See supra Part II(B).

156

Hill v. StubHub, Inc., 727 S.E.2d 550, 561–62 (N.C. Ct. App. 2012).

157

Jurin v. Google, Inc., 695 F. Supp. 2d 1117, 1123 (E.D. Cal. 2010).

158

Id.

159

See Interian, supra note 39, at 153; see sources cited supra notes 39, 43.

160

See supra Part II(B).

MARCH 2017]Uber and the Communications Decency Act 317

It is true that the context for Uber differs from many

Communications Decency Act cases in that the reason Uber would

be sued is likely not because the price being set by Uber is per se

unlawful,

161

but because the ride connection made through Uber

has caused some sort of an accident or injury due to negligence or

intentional acts.

162

In this scenario, though, the event that would

likely trigger the lawsuit would not happen without the ride

connection having been made through Uber, and the price of the

ride is a necessary part of that connection, with Uber being the

entity that sets the price. The price of the ride being set by Uber is

not severable from the injury-causing ride itself.

A better analysis of the scenario, however, would examine

Uber’s role as a content provider by setting the price against the

plain language of the Communications Decency Act. There is

nothing in the statute that requires the content at issue to be

unlawful—the statute examines only whether the content was

provided by a third-party for immunity to attach.

163

Indeed, it is

revealing that in the aforementioned Doe v. MySpace, Inc.,

164

the

court does not distinguish between the content that was itself

unlawful in nature

165

and the content that led to the unlawful

event.

166

161

As opposed to, for example, a website being sued for a defamatory posting

authored by a third-party user—the classic fact pattern for Communications

Decency Act cases. See supra note 57.

162

See supra note 11.

163

See supra Part II(B).

164

Doe v. MySpace, Inc., 528 F.3d 413, 418–22 (5th Cir. 2008).

165

Id.

166

Which is the case in Doe v. MySpace, Inc., as it was not the posting made

by the minor that was the reason for the lawsuit, but rather the sexual assault that

followed the posting by the minor. Id. at 415–17. Thus the posting made by the

minor made a way for, or led to, the unlawful event against her—analogous to

the scenario likely facing Uber in lawsuit. See supra note 11. A critical

difference here is MySpace was not a content provider (the third-party minor

user was the content creator by setting up her profile), while Uber is taking on

the role of content provider by setting the price for the ride between third-party

users. See sources cited supra notes 39, 43.

318 N.C. J.L. & TECH. [VOL. 18: 290

Thus the analysis for Uber should be focused on the price as

the content being set solely by Uber, independent of whether that

content is unlawful. Uber creates the content that is the price of the

ride for its users, and that role should suffice to render Uber as an

information content provider.

167

B. Controlling User Connections and Providing Content

Additionally, Uber controls aspects of user connections by

sending a passenger’s ride request to a particular driver

168

and by

not allowing passengers to pick their drivers.

169

As far as third-

party users using the app are concerned, the app does not provide a

neutral means for them to connect with other users freely.

To elaborate, while there is some freedom for a driver to accept

or decline a ride request,

170

a driver is not given access on the app

to see all ride requests being made on Uber (or to choose from that

pool).

171

Rather, ride requests come to him one at a time, delegated

by Uber.

172

For a passenger, there is much less freedom. The

passenger has no choice in drivers.

173

Once the ride request has

been accepted by a driver, the only way out of the now-already

167