Companies that interact with consumers from other jurisdictions typically include forum selection clauses in their agreement/terms of use. In the event of a dispute with a consumer, these clauses allow the company to choose a forum that is most convenient in order to obtain a “home field advantage.” For example, a company may find it advantageous to appear before a local court as its counsel may be more familiar with the local rules and judges in that particular venue.
Social media companies like Twitter, Facebook, Instagram and YouTube each include a “forum selection clause” in their terms of service agreements which provide that disputes or claims brought against these social media platforms must be brought in California’s state or federal courts. Although these clauses are generally deemed enforceable, Congressmen Devin Nunes, who hails from California, recently overcame the obstacle of a forum selection clause in a lawsuit he filed against Twitter in Virginia, notwithstanding Twitter’s position that the suit had to be filed in California.
“Web scraping” involves the use of software to collect data from the internet, which can then be sold to other users. On September 9, 2019, the United States Court of Appeals for the Ninth Circuit issued a decision in hiQ Labs, Inc. v. LinkedIn Corp., No. 17-16783, holding that LinkedIn could not deny a web scraping company access to publicly available LinkedIn member profiles.
On June 7, 2019, the United States Court of Appeals for the District of Columbia Circuit held that §230 of the Communications Decency Act (“CDA”), 47 U.S.C. §230 (c)(1) provided immunity from suit to Google, Microsoft and Yahoo! when they are sued for re-publishing content on their websites which is provided by a third-party. Marshall’s Locksmith Service Inc. v. Google, LLC, 2019 U.S. App. LEXIS 17123, No. 18-7018 (D.C. Cir. June 7, 2019). Less than two weeks later, U.S. Senator Josh Hawley (R-MO) introduced legislation – the “Ending Support for Internet Censorship Act” – to remove the §230 immunity that protects companies such as Facebook, Twitter, Google, and the like unless such companies prove to the Federal Trade Commission (“FTC”) that their content moderation is politically neutral.
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On March 26, 2019, the United States Court of Appeals for the Second Circuit heard oral argument in Knight First Amendment Inst. at Columbia University v. Trump, No. 18-1691 (2d Cir.), a case which will decide whether President Donald Trump can block people from seeing what he posts on Twitter. (See 
In Schulman v. Facebook.com, 2017 U.S. Dist. LEXIS 183110 (D.N.J. 2017), a federal district court in New Jersey dismissed a plaintiff’s lawsuit claiming that various media defendants censored his political speech on Facebook in violation of his constitutional rights. The court held that “All of Plaintiff’s constitutional claims against all Defendants fail as a matter of law because Plaintiff fails to allege that Defendants are state actors” and the U.S. Constitution “only applies to governmental actors – and does not apply to private parties.” A federal court in California reached a similar decision in Prager Univ. v. Google, LLC, 2018 U.S. Dist. LEXIS 51000 (N.D. Cal. 2018).
The U.S. Supreme Court referred to its decision in Packingham v. North Carolina, 137 S. Ct. 1730 (2017) as one of the first cases “this Court has taken to address the relationship between the First Amendment and the modern internet.” In the case, the Court, citing the First Amendment’s Free Speech Clause, struck down as unconstitutional a North Carolina statute that made it a felony for a registered sex offender to use social media websites such as Facebook and Twitter. The Court also made several significant statements about social media and free speech.
Last month, the judge presiding over Democratic National Committee v. The Russian Federation, et al., Civil Action No. 18-3501 (S.D.N.Y. Aug. 6, 2018), entered an Order granting plaintiff leave to serve defendant WikiLeaks via Twitter. The Order was entered after plaintiff demonstrated through a brief and supporting Declaration that diligent attempts to serve WikiLeaks through “a variety of methods, including emails to an address provided by WikiLeaks on its website, and by contacting counsel who have represented WikiLeaks in other matters” had proved unsuccessful.
“This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.” Thus, begins the 75 page decision of the Honorable Naomi Reice Buchwald, U.S.D.J. in Knight First Amendment Inst. at Columbia University v. Trump, No. 17-5205 (S.D.N.Y. May 23, 2018).