The Estate of Carson Bride v. Yolo Technologies, Inc.

                 FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

THE ESTATE OF CARSON BRIDE,               No. 23-55134
by and through his appointed
administrator KRISTIN BRIDE; A.              D.C. No.
K., by and through her legal guardian     2:21-cv-06680-
Jane Doe 1; A. C., by and through her       FWS-MRW
legal guardian Jane Doe 2; A. O., by
and through her legal guardian Jane
Does 3; TYLER CLEMENTI                      OPINION
FOUNDATION, on behalf of
themselves and all others similarly
situated,

              Plaintiffs-Appellants,
  v.

YOLO TECHNOLOGIES, INC.,

              Defendant-Appellee.

       Appeal from the United States District Court
           for the Central District of California
       Fred W. Slaughter, District Judge, Presiding

          Argued and Submitted April 11, 2024
                 Pasadena, California

                  Filed August 22, 2024
2               ESTATE OF BRIDE V. YOLO TECH., INC.


     Before: Eugene E. Siler, * Carlos T. Bea, and Sandra S.
                    Ikuta, Circuit Judges.

                      Opinion by Judge Siler


                          SUMMARY **


                Communications Decency Act

    The panel reversed the district court’s dismissal of
plaintiffs’ misrepresentation claims and affirmed the district
court’s dismissal of plaintiffs’ products liability claims in
their diversity class action alleging that YOLO Technologies
violated multiple state tort and product liability laws by
developing an anonymous messaging app which promised to
unmask bullying and abusive users, but YOLO never
actually did so.
    The district court held that § 230 of the Communications
Decency Act—which protects apps and websites which
receive content posted by third-party users from liability for
any content posted on their services—immunized YOLO
from liability on plaintiffs’ claims and dismissed the
complaint.
   Reversing the district court’s dismissal of plaintiffs’
misrepresentation claims, the panel held that the claims


*
 The Honorable Eugene E. Siler, United States Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
**
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              ESTATE OF BRIDE V. YOLO TECH., INC.             3


survived because plaintiffs seek to hold YOLO accountable
for its promise to unmask or ban users who violated the
terms of service, and not for a failure to take certain
moderation actions.
    Affirming the district court’s dismissal of plaintiffs’
products liability claims, the panel held that § 230 precludes
liability because plaintiffs’ product liability theories attempt
to hold YOLO liable as a publisher of third-party content.


                         COUNSEL

Juyoun Han (argued), Eric M. Baum, Andrew Clark, and
Jonathan Axel, Eisenberg & Baum LLP, New York, New
York, for Plaintiffs-Appellants.
Ramnik S. Pujji (argued), Carol Yur, and Emma Moralyan,
Dentons US LLP, Los Angeles, California, for Defendant-
Appellee.
Megan Iorio and Tom McBrien, Electronic Privacy
Information Center, Washington, D.C., for Amici Curiae
Electronic Privacy Information Center and Fairplay.


                          OPINION

SILER, Circuit Judge:

    Appellee YOLO Technologies developed an extension
for use on the Snapchat application (“app”) which allowed
users to ask public questions and send and receive
anonymous responses. YOLO informed all users that it
would reveal the identities of, and ban, anyone who engaged
4             ESTATE OF BRIDE V. YOLO TECH., INC.


in bullying or harassing behavior. Appellants, three living
minor children and the estate of a fourth, all suffered extreme
harassment and bullying through YOLO resulting in acute
emotional distress, and in the case of Carson Bride, death by
suicide. They brought this diversity class action alleging that
YOLO violated multiple state tort and product liability laws
by developing an anonymous messaging app which
promised to unmask, and thereby prevent, bullying and
abusive users, but YOLO never actually did so.
    The district court held that § 230 of the Communications
Decency Act immunized YOLO from these claims and
dismissed the complaint. We affirm and reverse in part,
holding that § 230 bars Plaintiffs’ products liability claims
but not their misrepresentation claims.
                              I.
                              A.
    YOLO Technologies developed their app as an extension
upon the already-popular Snapchat app. Marketed mainly
toward teenagers in mobile app stores, YOLO achieved
tremendous popularity, reaching the top of the download
charts within a week of its launch. It eventually reached ten
million active users.
    Anonymity was YOLO’s key feature. Users would
install the app and use it to post public questions and polls
for their followers. Other users, also using YOLO, could
respond to the questions or polls anonymously, unless they
chose to “swipe up” and voluntarily disclose their identity as
part of their answer. Without such voluntary revelation, the
recipient would not know the responder’s account nickname,
user information, or any other identifying data.
              ESTATE OF BRIDE V. YOLO TECH., INC.            5


    Anonymous messaging applications, even ones
marketed specifically to teens, are not new inventions.
Plaintiffs contend that “it [has] long been understood that
anonymous online communications pose a significant
danger to minors, including by increasing the risk of bullying
and other antinormative behavior.”           In fact, prior
applications with anonymous communication features had
caused “teenagers [to] take[] their own lives after being
cyberbullied.”
    As a hedge against these potential problems, YOLO
added two “statements” to its application: a notification to
new users promising that they would be “banned for any
inappropriate usage,” and another promising to unmask the
identity of any user who “sen[t] harassing messages” to
others. But, Plaintiffs argue, with a staff of no more than ten
people, there was no way YOLO could monitor the traffic of
ten million active daily users to make good on its promise,
and it in fact never did. Many user reviews of the YOLO
app on Apple’s app store reflected frustration with harassing
and bullying behavior.
                              B.
    Plaintiffs A.K., A.C., A.O., and Carson Bride all
downloaded the YOLO extension and used it on the
Snapchat app. All four were inundated with harassing,
obscene, and bullying messages including “physical threats,
obscene sexual messages and propositions, and other
humiliating comments.” Users messaged A.C. suggesting
that she kill herself, just as her brother had done. A.O. was
sent a sexual message, and her friend was told she was a
“whore” and “boy-obsessed.” A.K. received death threats,
was falsely accused of drug use, mocked for donating her
hair to a cancer charity, and exhorted to “go kill [her]self,”
6            ESTATE OF BRIDE V. YOLO TECH., INC.


which she seriously considered. She suffered for years
thereafter.    Carson Bride was subjected to constant
humiliating messages, many sexually explicit and highly
disturbing. Despite his efforts, Carson was unable to
unmask the users who were sending these messages and
discover their identities. On June 23, 2020, Carson hanged
himself at his home.
    A.K. attempted to utilize YOLO’s promised unmasking
feature but received no response. Carson searched the
internet diligently for ways to unmask the individuals
sending him harassing messages, with no success. Carson’s
parents continued his efforts after his death, first using
YOLO’s “Contact Us” form on its Customer Support page
approximately two weeks after his death. There was no
answer. Approximately three months later, his mother
Kristin Bride sent another message, this time to YOLO’s law
enforcement email, detailing what happened to Carson and
the messages he received in the days before his death. The
email message bounced back as undeliverable because the
email address was invalid. She sent the same to the customer
service email and received an automated response promising
an answer that never came. Approximately three months
later, Kristin reached out to a professional friend who
contacted YOLO’s CEO on LinkedIn, a professional
networking site, with no success. She also reached out again
to YOLO’s law enforcement email, with the same result as
before.
    Kristin Bride filed suit against YOLO and other
defendants no longer part of the action. The first amended
complaint alleged twelve causes of action including product
liability based on design defects and failure to warn,
negligence, fraudulent and negligent misrepresentation,
unjust enrichment, and violations of Oregon, New York,
                 ESTATE OF BRIDE V. YOLO TECH., INC.                    7


Colorado, Pennsylvania, Minnesota, and California tort law.
Plaintiffs’ counsel agreed at a hearing that the state law
claims were all based in “misrepresentation, intentional and
negligent.” Forty-eight hours after Plaintiffs filed this suit,
Snap suspended YOLO’s access to its application and later
announced a complete ban on anonymous messaging apps in
its app store.
                                   C.
    Plaintiffs’ theories essentially fall into two categories:
products liability and misrepresentation. Counsel admitted
that the state law claims all fell under misrepresentation, and
YOLO splits them between products liability and
misrepresentation.
     The products liability claims allege that YOLO’s app is
inherently dangerous because of its anonymous nature and
that it was negligent for YOLO to ignore the history of teen
suicides stemming from cyberbullying on anonymous apps.
Plaintiffs based their products liability claim solely on the
anonymity of YOLO’s app at the district court and through
initial briefing at this court. 1
    Plaintiffs’ misrepresentation claims are based on their
allegation that YOLO alerted all new users that bullying and
harassing behavior would result in the offending user being
banned and unmasked, but YOLO never followed through



1
  In their reply brief, Plaintiffs advance a new theory that several of
YOLO’s features taken together created liability. YOLO moved to strike
this argument because it was raised for the first time in the reply brief.
We agree and will grant the motion. Our grant of this motion, however,
does not affect any possible motions in the district court to amend the
complaint on remand.
8             ESTATE OF BRIDE V. YOLO TECH., INC.


on this threat despite A.K.’s requests and Kristin Bride’s
emails.
    The district court granted YOLO’s motion to dismiss,
finding that the entire complaint sought to hold YOLO
responsible for the content of messages posted on its app by
users and not for any separate duty or obligation to the
Plaintiffs. The court relied heavily on Dyroff v. Ultimate
Software Group, Inc., 

 (9th Cir. 2019), which
involved a lawsuit against a completely anonymous website
through which the plaintiff’s deceased son purchased
fentanyl-laced drugs. The district court found this matter
essentially on all fours with Dyroff and dismissed the suit.
                              II.
    We review de novo the district court’s decision to grant
YOLO’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Puri v. Khalsa, 

(9th Cir. 2017). Questions of statutory interpretation are
reviewed de novo as well. Collins v. Gee W. Seattle LLC,

 (9th Cir. 2011). And we take all factual
allegations in the complaint as true and “construe the
pleadings in the light most favorable to the nonmoving
party.” Rowe v. Educ. Credit Mgmt. Corp., 

,
1029–30 (9th Cir. 2009) (quoting Knievel v. ESPN, 

 (9th Cir. 2005)).
                              A.
     The Internet was still in its infancy when Congress
passed the Communications Decency Act (“CDA”) in 1996.

; Batzel v. Smith, 

, 1026–27
(9th Cir. 2003). Even at its young age, legislators recognized
its tremendous latent potential. Barnes v. Yahoo!, Inc., 

 (9th Cir. 2009). However, because of the
              ESTATE OF BRIDE V. YOLO TECH., INC.            9


unprecedented reach and speed of the new forum, that
potential would be significantly limited if courts imposed
traditional publisher liability on internet platforms. See Doe
v. Internet Brands, Inc., 

, 851–52 (9th Cir.
2016). Traditional publisher liability held that if a publisher
took upon itself the task of moderating or editing the content
that appeared within its pages, it became responsible for
anything tortious written there. 

. A New York state
court perfectly illustrated this danger when it found that an
online message board became a publisher responsible for the
offensive content of any messages “because it deleted some
offensive posts but not others.” 

 In light of the sheer
volume of internet traffic, this presented providers with a
“grim choice”: voluntarily filter some content and risk
overlooking problems and thereby incurring tort liability, or
take a hands-off approach and let the trolls run wild. 

    To address this problem, Congress enacted § 230 of the
CDA. This section allows services “to perform some editing
on user-generated content without thereby becoming liable
for all defamatory or otherwise unlawful messages they
didn’t edit or delete.” Fair Hous. Council of San Fernando
Valley v. Roommates.Com, LLC, 

 (9th
Cir. 2008) (en banc) [hereinafter Roommates]. Congress
included a policy statement within § 230 concluding that
“[i]t is the policy of the United States . . . to promote the
continued development of the Internet and other interactive
computer services and other interactive media.” 

(b)(1). To that end, the law sought to encourage the
development and use of technologies that would allow users
to filter and control the content seen by themselves or their
children. 

 § 230(b)(3)–(4).
   The operative section of the law, § 230(c), titled
“Protection for ‘Good Samaritan’ blocking and screening of
10            ESTATE OF BRIDE V. YOLO TECH., INC.


offensive material,” is divided into two working parts. Id.
§ 230(c). The first broadly states that no service provider
“shall be treated as the publisher or speaker of any
information provided by another information content
provider,” or, more colloquially, by a third-party user of the
service. Id. § 230(c)(1). The second part protects actions
taken by a service provider to moderate and restrict material
it “considers to be obscene, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise objectionable.”
Id. § 230(c)(2). Section 230 expressly preempts any state
laws with which it may conflict. Id. § 230(e)(3).
    In short, § 230 protects apps and websites which receive
content posted by third-party users (i.e., Facebook,
Instagram, Snapchat, LinkedIn, etc.) from liability for any of
the content posted on their services, even if they take it upon
themselves to establish a moderation or filtering system,
however imperfect it proves to be. This immunity persists
unless the service is itself “‘responsible, in whole or in part,
for the creation or development of’ the offending content.”
Roommates, 

 (quoting 

(f)(3)).
    This robust immunity applies to “(1) a provider or user
of an interactive computer service (2) whom a plaintiff seeks
to treat, under a state law cause of action, as a publisher or
speaker (3) of information provided by another information
content provider.” Barnes, 570 F.3d at 1100–01 (footnote
omitted). The parties agree that YOLO is an interactive
computer service under § 230, and therefore satisfies the first
prong. See 

(f)(2). YOLO is clearly the
developer of the YOLO app, which allows users to
communicate anonymously, send polls and questions, and
send and receive anonymous responses.
               ESTATE OF BRIDE V. YOLO TECH., INC.            11


     The second Barnes prong considers whether the cause of
action alleged in the complaint seeks to plead around the
CDA’s strictures and treat the defendant as a “publisher or
speaker” of third-party content. See 

(c)(1).
“[W]hat matters is not the name of the cause of action . . .
[but] whether the cause of action inherently requires the
court to treat the defendant as the ‘publisher or speaker’ of
content provided by another.” Barnes, 570 F.3d at 1101–02
(listing successful cases against services that failed to qualify
for § 230 immunity). The act of “publication involves
reviewing, editing, and deciding whether to publish or to
withdraw from publication third-party content.” Id. at 1102.
    It is imperative to consider that “neither
[subsection 230(c)] nor any other declares a general
immunity from liability deriving from third-party content.”
Id. at 1100. Indeed, that could not be true; for most
applications of § 230 in our internet age involve social media
companies, which nearly all provide some form of platform
for users to communicate with each other. In cases such as
these, “[p]ublishing activity is a but-for cause of just about
everything [defendants are] involved in. [They are] internet
publishing business[es].” Internet Brands, 

;
see also Calise v. Meta Platforms, Inc., 

, 742
(9th Cir. 2024) (“Putting these cases together, it is not
enough that a claim, including its underlying facts, stems
from third-party content for § 230 immunity to apply.”). The
proper analysis requires a close examination of the duty
underlying each cause of action to decide if it “derives from
the defendant’s status or conduct as a publisher or speaker.”
Barnes, 

. Therefore, services can still be
liable under traditional tort theories if those theories do not
require the services to exercise some kind of publication or
editorial function. 

.
12               ESTATE OF BRIDE V. YOLO TECH., INC.


                                    B.
    In short, we must engage in a “careful exegesis of the
statutory language” to determine if these claims attempt to
treat YOLO as the “publisher or speaker” of the allegedly
tortious messages. 

. This exacting analysis helps
us avoid “exceed[ing] the scope of the immunity provided
by Congress.” 2 Internet Brands, 

 (quoting
Roommates, 

 n.15). After all, § 230
immunity is extraordinarily powerful, granting complete
immunity where it applies and, in the process, preempting
even the will of the people as expressed in their state
legislatures. See 

(e)(3) (preempting state
law). Our analysis, therefore, “ask[s] whether the duty that
the plaintiff alleges the defendant violated derives from the
defendant’s status or conduct as a ‘publisher or speaker.’ If
it does, section 230(c)(1) precludes liability.” Barnes, 

. But if it does not, then the suit may proceed as
against the claim of immunity based on § 230(c)(1).
    Our opinion in Calise v. Meta Platforms, published
earlier this year, clarified the required duty analysis that
originated in Barnes v. Yahoo, Lemmon v. Snap, Inc., and
HomeAway.com, Inc. v. City of Santa Monica. Calise, 103
F.4th at 742 (“Our cases instead require us to look to the
legal ‘duty.’ ‘Duty’ is ‘that which one is bound to do, and
for which somebody else has a corresponding right.’”
(quoting Duty, Black’s Law Dictionary (11th ed. 2019))).
We now conduct a two-step analysis. Id. First, we examine
the “right from which the duty springs.” Id. (quotations
omitted). Does it stem from the platform’s status as a

2
 In light of this, we have explicitly disclaimed the use of a “but-for” test
because it would vastly expand § 230 immunity beyond Congress’
original intent. See Internet Brands, 

.
                ESTATE OF BRIDE V. YOLO TECH., INC.                 13


publisher (in which case it is barred by § 230)? Or does it
spring from some other obligation, such as a promise or
contract (which, under Barnes, is distinct from publication
and not barred by § 230)? Second, we ask what “this duty
requir[es] the defendant to do.” Id. If it requires that YOLO
moderate content to fulfill its duty, then § 230 immunity
attaches. 3 See id.; HomeAway.com, Inc. v. City of Santa
Monica, 

 (9th Cir. 2019).
    Barnes perfectly illustrates the duty distinction
reemphasized in Calise. In that case, Barnes’s estranged
boyfriend posted nude images of her on a fake profile on
Yahoo’s website, and she reached out to Yahoo to get them
removed. Barnes, 570 F.3d at 1098–99. Yahoo’s Director
of Communications promised Barnes over the phone that she
would personally facilitate the removal of the offending fake
profile. Id. at 1099. Nothing happened and Barnes sued,
alleging negligent undertaking and promissory estoppel. Id.
Skeptical of Barnes’s negligent undertaking claim, we held
that it was simply a defamation claim recast as negligence
and asked,

        [W]hat is the undertaking that Barnes alleges
        Yahoo failed to perform with due care? The
        removal of the indecent profiles that her
        former boyfriend posted on Yahoo’s website.

3
  We emphasize, however, that this does not mean immunity attaches
anytime YOLO could respond to a legal duty by removing content. See
HomeAway.com, Inc. v. City of Santa Monica, 

 (9th
Cir. 2019). Instead, we look at what the purported legal duty requires—
“specifically, whether the duty would necessarily require an internet
company to monitor third-party content.” 

 For immunity to attach at
this second step, moderation must be more than one option in YOLO’s
menu of possible responses; it must be the only option.
14            ESTATE OF BRIDE V. YOLO TECH., INC.


       But removing content is something
       publishers do, and to impose liability on the
       basis of such conduct necessarily involves
       treating the liable party as a publisher of the
       content it failed to remove.

Id. at 1103; see 

(c)(1). We determined that
Barnes’s negligent undertaking claim faulted Yahoo for
failure to remove content, and “such conduct is publishing
conduct . . . that can be boiled down to” editorial behavior.

 (emphasis and quotations omitted) (quoting
Roommates, 521 F.3d at 1170–71). Such claims are
explicitly foreclosed by § 230(c)(1).
     Barnes’s promissory estoppel claim, however, fared
better. Because this claim “is a subset of a theory of recovery
based on a breach of contract,” it was not ultimately
grounded in Yahoo’s failure to remove content, but in their
failure to honor a “private bargain[].” Id. at 1106 (quotations
omitted). While yes, that was a promise to moderate content,
the underlying obligation upon which Barnes relied was not
an obligation to remove a profile, but the promise itself. Id.
at 1107–09. As we noted, Barnes did “not seek to hold
Yahoo liable as a publisher or speaker of third-party content,
but rather as the counter-party to a contract, as a promisor
who [had] breached.” Id. at 1107. Section 230 only
“precludes liability when the duty the plaintiff alleges the
defendant violated derives from the defendant’s status or
conduct as a publisher or speaker.” Id. We justified the
distinction because of where the individual claims derive
liability: negligent undertaking is grounded in “behavior that
is identical to publishing or speaking,” whereas “[p]romising
is different because it is not synonymous with the
performance of the action promised.” Id. “[W]hereas one
              ESTATE OF BRIDE V. YOLO TECH., INC.          15


cannot undertake to do something without simultaneously
doing it, one can, and often does, promise to do something
without actually doing it at the same time.” Id. Therefore,
contractual liability stood where negligence fell.
    The question of whether § 230 immunity applies is not
simply a matter of examining the record to see if “a claim,
including its underlying facts, stems from third-party
content.” Calise, 103 F.4th at 742. Nor is there a bright-line
rule allowing contract claims and prohibiting tort claims that
do not require moderating content, for that would be
inconsistent with those cases where we have allowed tort
claims to proceed, see Internet Brands, 

(negligent failure to warn claim survived § 230 immunity);
Lemmon v. Snap, Inc., 

 (9th Cir. 2021)
(authorizing a products liability claim based in negligent
design), and contradict our prior position that the name of a
cause of action is irrelevant to immunity, Barnes, 

 (“[W]hat matters is not the name of the cause of
action . . . what matters is whether the cause of action
inherently requires the court to treat the defendant as the
‘publisher or speaker’ of content provided by another.”).
Instead, we must engage in a careful inquiry into the
fundamental duty invoked by the plaintiff and determine if
it “derives from the defendant’s status or conduct as a
‘publisher or speaker.’” 

                              C.
    We now conduct that inquiry here. The parties divide
the claims into two categories—misrepresentation and
products liability—and we will continue that distinction in
our analysis.
16            ESTATE OF BRIDE V. YOLO TECH., INC.


                              1.
    Turning first to Plaintiffs’ misrepresentation claims, we
find that Barnes controls. YOLO’s representation to its
users that it would unmask and ban abusive users is
sufficiently analogous to Yahoo’s promise to remove an
offensive profile. Plaintiffs seek to hold YOLO accountable
for a promise or representation, and not for failure to take
certain moderation actions. Specifically, Plaintiffs allege
that YOLO represented to anyone who downloaded its app
that it would not tolerate “objectionable content or abusive
users” and would reveal the identities of anyone violating
these terms. They further allege that all Plaintiffs relied on
this statement when they elected to use YOLO’s app, but that
YOLO never took any action, even when directly requested
to by A.K. In fact, considering YOLO’s staff size compared
to its user body, it is doubtful that YOLO ever intended to
act on its own representation.
    While it is certainly an open question whether YOLO has
any defenses to enforcement of its promise, at this stage we
cannot say that § 230 categorically prohibits Plaintiffs from
making the argument. YOLO may argue that it did not
intend to induce reliance on the promise by the Plaintiffs, or
that the statements were not promises made to Plaintiffs but
instead warnings to others. But we treat “the outwardly
manifested intention to create an expectation on the part of
another as a legally significant event. That event generates
a legal duty distinct from the conduct at hand,” a duty which
we will enforce. Barnes, 

.
   The district court oversimplified the proper analysis for
§ 230 immunity and essentially dismissed the claims
because malicious third-party postings were involved or
must be edited by YOLO. In its own words, “Plaintiffs’
              ESTATE OF BRIDE V. YOLO TECH., INC.           17


claims that [YOLO] . . . misrepresented their applications’
safety would not be cognizable” without the harmful
behavior of third-party users, and therefore immunity
applies. The proper analysis is to examine closely the duty
underlying each cause of action and decide if it “derives
from the defendant’s status or conduct as a publisher or
speaker.” Id. If it does, then § 230(c)(1) immunizes the
defendant from liability on that claim.
    In summary, Barnes is on all fours with Plaintiffs’
misrepresentation claims here. YOLO repeatedly informed
users that it would unmask and ban users who violated the
terms of service. Yet it never did so, and may have never
intended to. Plaintiffs seek to enforce that promise—made
multiple times to them and upon which they relied—to
unmask their tormentors. While yes, online content is
involved in these facts, and content moderation is one
possible solution for YOLO to fulfill its promise, the
underlying duty being invoked by the Plaintiffs, according
to Calise, is the promise itself. See Barnes, 570 F.3d at
1106–09. Therefore, the misrepresentation claims survive.
                              2.
    Next, we address the product liability claims. In general,
these claims assert that YOLO’s app is inherently dangerous
because of its anonymous nature, and that previous high-
profile suicides and the history of cyberbullying should have
put YOLO on notice that its product was unduly dangerous
to teenagers. We hold that § 230 precludes liability on these
claims.
    Plaintiffs first allege product liability claims for design
defect, and negligence. The defective design claim alleges
that YOLO “developed, designed, manufactured, marketed,
sold, and distributed to at least hundreds of thousands of
18            ESTATE OF BRIDE V. YOLO TECH., INC.


minors” a product that was unreasonably dangerous because
of its anonymity. They claim that the bare fact of YOLO’s
anonymity made it uniquely dangerous to minors and that
YOLO should have known this because prior anonymous
applications had a deleterious effect on minor users. The
negligence claim is similar, claiming that YOLO failed to
“protect users from an unreasonable risk of harm arising out
of the use of their app[].” Failure to mitigate this
“foreseeable risk of harm,” Plaintiffs claim, makes YOLO
liable.
    Plaintiffs also allege products liability claims under a
failure to warn theory. The alleged risks are the same as
those for defective design and negligence, but the claims are
centered more on YOLO’s alleged failure to disclose these
risks to users when they downloaded the YOLO app.
Plaintiffs therefore ask for compensatory damages,
pecuniary loss, and loss of society, companionship, and
services to Carson Bride’s parents, and punitive damages
“based on [YOLO’s] willful and wanton failure to warn of
the known dangers” of its product.
    At root, all Plaintiffs’ product liability theories attempt
to hold YOLO responsible for users’ speech or YOLO’s
decision to publish it. For example, the negligent design
claim faults YOLO for creating an app with an
“unreasonable risk of harm.” What is that harm but the
harassing and bullying posts of others? Similarly, the failure
to warn claim faults YOLO for not mitigating, in some way,
the harmful effects of the harassing and bullying content.
This is essentially faulting YOLO for not moderating content
in some way, whether through deletion, change, or
suppression.
              ESTATE OF BRIDE V. YOLO TECH., INC.            19


    Our decision in Lemmon v. Snap, Inc. does not help
Plaintiffs. In that case, parents of two teens killed while
speeding sued the company that owns Snapchat. Lemmon,

. They alleged that the boys had been
speeding because of a feature on the Snapchat app that
allowed users to overlay their current speed onto photos and
videos. 

 at 1088–89. It was widely believed that Snapchat
would reward users with in-app rewards of some kind if they
attained a speed over 100 mph. 

. The boys
operated the filter moments before their deaths. 

.
The parents brought negligent design claims alleging that
Snapchat, despite numerous news articles, an online petition
about the inherent problems with the filter, “at least three
accidents,” and “at least one other lawsuit,” continued to
offer a feature that “incentiviz[ed] young drivers to drive at
dangerous speeds.” 

. The district court dismissed
the complaint on § 230 grounds. Id. at 1090. On appeal, we
held that the negligent design claims were not an attempt “to
treat a defendant as a ‘publisher or speaker’ of third-party
content.” Id. at 1091. Instead, the parents sought to hold
Snap liable for creating (1) Snapchat, (2) the speed filter, and
(3) an incentive structure that enticed users to drive at unsafe
speeds. Id. In clarifying that the parents’ product liability
claim was not “a creative attempt to plead around the CDA,”
we explained that claim did “not depend on what messages,
if any, a Snapchat user employing the Speed Filter actually
sends.” Id. at 1094. As a result, the claim did not depend on
third-party content. Id.
    Here, Plaintiffs allege that anonymity itself creates an
unreasonable risk of harm. But we refuse to endorse a theory
that would classify anonymity as a per se inherently
unreasonable risk to sustain a theory of product liability.
First, unlike in Lemmon, where the dangerous activity the
20            ESTATE OF BRIDE V. YOLO TECH., INC.


alleged defective design incentivized was the dangerous
behavior of speeding, here, the activity encouraged is the
sharing of messages between users. See id. Second,
anonymity is not only a cornerstone of much internet speech,
but it is also easily achieved. After all, verification of a
user’s information through government-issued ID is rare on
the internet. Thus we cannot say that this feature was
uniquely or unreasonably dangerous.
    Similarly, Internet Brands provides no cover for
Plaintiffs’ failure to warn theory. In that case, we upheld
liability against a professional networking site for models
under a failure to warn theory. Internet Brands, 

. Plaintiff created a profile on the website Model
Mayhem, owned by Internet Brands, advertising her services
as a model. 

 Meanwhile, the site’s owners were aware
that a pair of men had been using the site to set up fake
auditions, lure women to “auditions” in Florida, and then
rape them. 

 at 848–49. Yet the owners did not warn
plaintiff, and she fell victim to the scheme. 

. We
reasoned that plaintiff sought to hold defendant liable under
a traditional tort theory—the duty to warn—which had no
bearing on Model Mayhem’s decision to publish any
information on its site. 

. After all, plaintiff had
posted her own profile on the website, and did not allege that
the rapists had posted anything on the website. 

Therefore, § 230 was no protection.
    In short, the defendant in Internet Brands failed to warn
of a known conspiracy operating independent of the site’s
publishing function. Id. But here, there was no conspiracy
to harm that could be defined with any specificity. It was
merely a general possibility of harm resulting from use of
the YOLO app, and which largely exists anywhere on the
              ESTATE OF BRIDE V. YOLO TECH., INC.           21


internet. We cannot hold YOLO responsible for the
unfortunate realities of human nature.
     Finally, we clarify the extent to which Dyroff v. Ultimate
Software Group is applicable, but not dispositive, here. In
that case, a grieving mother sued an anonymous website that
allowed users to post whatever they wanted, anonymously,
and receive anonymous replies. Dyroff, 934 F.3d at 1094–
95. Her son purchased drugs using the site and died because
the drugs he purchased were laced with fentanyl. Id. at 1095.
As we explained, “[s]ome of the site’s functions, including
user anonymity and grouping, facilitated illegal drug sales.”
Id. at 1095. The mother sued, alleging that the site had
allowed users to engage in illegal activity, that the website’s
recommendation algorithm had promoted and enabled these
communications, and that defendant failed to moderate the
website’s content to eliminate these problems. Id. We
concluded that § 230(c) granted defendant immunity from
these claims. Id. at 1096. First, we noted that § 230
“provides that website operators are immune from liability
for third-party information . . . unless the website operator
‘is responsible, in whole or in part, for the creation or
development of [the] information.’” Id. (brackets in
original) (quoting 

(c)(1), (f)(3)). We then
looked at whether the claims “inherently require[] the court
to treat the defendant as the ‘publisher or speaker’ of content
provided by another.” 

 (brackets in original)
(quoting Barnes, 

). Because the automated
processes contained in the site’s algorithm were not
themselves content but merely “tools meant to facilitate the
communication and content of others,” we found the second
Barnes prong satisfied. 

 Finally, the third Barnes prong
was satisfied because the content was clearly developed by
others, not the defendant. 

. Unlike in Roommates,
22            ESTATE OF BRIDE V. YOLO TECH., INC.


where the defendant played a role in developing the illegal
content by requiring users to answer particular questions, the
defendant in Dyroff merely provided a “blank text box” that
users could utilize however they wanted. 

.
    In our view, Plaintiffs’ product liability theories
similarly attempt to hold YOLO liable as a publisher of
third-party content, based in part on the design feature of
anonymity. To be sure, our opinion in Dyroff did not rely on
anonymity for its § 230 analysis. See id. at 1096–99. But
our analysis of Plaintiffs’ product liability claims is
otherwise consistent with Dyroff’s reasoning: here, the
communications between users were direct, rather than
suggested by an algorithm, and YOLO similarly provided
users with a blank text box. These facts fall within Dyroff’s
ambit. As we have recognized, “No website could function
if a duty of care was created when a website facilitates
communication, in a content-neutral fashion, of its users’
content.” Id. at 1101. Though the claims asserted in Dyroff
were different than the claims asserted here, our conclusion
is consistent with Dyroff’s reasoning.
    In summary, Plaintiffs’ product liability claims attempt
to hold YOLO responsible as the speaker or publisher of
harassing and bullying speech. Those product liability
claims that fault YOLO for not moderating content are
foreclosed, see supra at 18; otherwise, nothing about
YOLO’s app was so inherently dangerous that we can justify
these claims, and unlike Lemmon, YOLO did not turn a blind
eye to the popular belief that there existed in-app features
that could only be accessible through bad behavior.
Lemmon, 995 F.3d at 1089–90 (describing how users
thought that exceeding 100 mph while using the Snapchat
app would produce a reward). And to the degree that the
online environment encouraged and enabled such behavior,
              ESTATE OF BRIDE V. YOLO TECH., INC.         23


that is not unique to YOLO. It is a problem which besets the
entire internet. Thus, § 230 immunizes YOLO from liability
on these claims.
                              D.
    In holding that the Plaintiffs’ misrepresentation claims
may proceed, we adhere to long-established circuit
precedent. We must strike a delicate balance by giving
effect to the intent of Congress as expressed in the statute
while not expanding the statute beyond the legislature’s
expressed intent in the face of quickly advancing
technology. Today’s decision does not expand liability for
internet companies or make all violations of their own terms
of service into actionable claims. To the degree that such
liability exists, it already existed under Barnes and Calise,
and nothing we do here extends that legal exposure to new
arenas.        Section 230 prohibits holding companies
responsible for moderating or failing to moderate content. It
does not immunize them from breaking their promises. Even
if those promises regard content moderation, the promise
itself is actionable separate from the moderation action, and
that has been true at least since Barnes. In our caution to
ensure § 230 is given its fullest effect, we must resist the
corollary urge to extend immunity beyond the parameters
established by Congress and thereby create a free-wheeling
immunity for tech companies that is not enjoyed by other
players in the economy.
                             III.
  We therefore REVERSE the district court’s grant of
YOLO’s motion to dismiss the misrepresentation claims but
AFFIRM in all other respects. YOLO’s motion to strike is
GRANTED.