MANHATTAN (CN) — The case of the New Yorker whose nightmarish experience on Grindr sparked national headlines and federal litigation will disappear with neither a trace nor a precedent.
An attorney for Matthew Herrick, whose ex-boyfriend used the hook-up app to send about 1,100 suitors Herrick’s way, had choice words Wednesday after the Second Circuit affirmed dismissal of their case.
“They’re allowing Big Tech to knowingly profit from stalking, rape and murder, when Big Tech companies are the only ones who can stop it,” attorney Tor Ekeland said in a phone interview.
Grindr said it empathized with Herrick but celebrated its legal victory today nonetheless.
“While we are sympathetic to the plaintiff’s situation, we are pleased that Grindr has been vindicated and that this matter was dismissed by the courts,” the company said in a statement. “Grindr has and always will be committed to creating a safe and secure environment to help our community connect and thrive.”
As it did in District Court, Grindr persuaded the Second Circuit today that it is immune from liability under the Communications Decency Act. The law is more than 20 years old, but the Second Circuit rejected arguments from Ekeland that it needs an update.
“Congress needs to step in to fix this because the courts are failing in their duty to protect the public,” said Ekeland, whose New York-based firm specializes in cases related to computers and the digital age.
Though U.S. Circuit Judges Dennis Jacobs, Reena Raggi and Raymond Lohier ruled against Herrick unanimously today, they issued their decision via summary order, meaning that it cannot be cited as precedent. The Second Circuit hears appeals from New York, Connecticut and Vermont.
Last year, U.S. District Judge Valerie Caproni expressed sympathy for Herrick’s experiences, but she ultimately found that Grindr was not at fault.
“While the creation of the impersonating profiles may be sufficiently extreme and outrageous, Grindr did not create the profiles,” Caproni said in January 2018.
On appeal Ekeland argued that he should be allowed to investigate what role Grindr’s geolocation feature may have played in steering the stalkers to his client, but the three-judge panel saw little evidence that geolocation played any role.
“It is uncontested that Herrick was no longer a user of the app at the time the harassment began; accordingly, any location information was necessarily provided by Herrick’s ex‐boyfriend,” the 11-page opinion states.
Labeled by the Electronic Frontier Foundation as the most important law for speech on the internet, the Communication Decency Act shields a “provider or user” of an “interactive computer service” from liability from content published by third-party users.
Noting that the legislation was enacted in an analog age, however, Ekeland said it cannot be applied to a “21st century product-liability case” such as the Grindr case.
“When the CDA was written, smartphones didn’t exist,” Ekeland said at the hearing earlier this year. “Google didn’t exist.”
Grindr’s attorney Daniel Waxman did not immediately respond to a request for comment.