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., 934 F.3d 1093 (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, 844 F.3d 1152, 1157

(9th Cir. 2017). Questions of statutory interpretation are

reviewed de novo as well. Collins v. Gee W. Seattle LLC,

631 F.3d 1001, 1004 (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., 559 F.3d 1028,

1029–30 (9th Cir. 2009) (quoting Knievel v. ESPN, 393 F.3d

1068, 1072 (9th Cir. 2005)).

A.

The Internet was still in its infancy when Congress

passed the Communications Decency Act (“CDA”) in 1996.

47 U.S.C. § 230; Batzel v. Smith, 333 F.3d 1018, 1026–27

(9th Cir. 2003). Even at its young age, legislators recognized

its tremendous latent potential. Barnes v. Yahoo!, Inc., 570

F.3d 1096, 1099 (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., 824 F.3d 846, 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. Id. at 852. 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.” Id. 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. Id.

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, 521 F.3d 1157, 1163 (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.” 47 U.S.C.

§ 230(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. Id. § 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, 521 F.3d at 1162 (quoting 47 U.S.C.

§ 230(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 47 U.S.C. § 230(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 47 U.S.C. § 230(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, 824 F.3d at 853;

see also Calise v. Meta Platforms, Inc., 103 F.4th 732, 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, 570 F.3d at 1107. 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. Id. at 1102.

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. Id. at 1100. This exacting analysis helps

us avoid “exceed[ing] the scope of the immunity provided

by Congress.” 2 Internet Brands, 824 F.3d at 853 (quoting

Roommates, 521 F.3d at 1164 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 47 U.S.C. § 230(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, 570

F.3d at 1102. 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, 824 F.3d at 853.

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, 918 F.3d 676, 682 (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, 918 F.3d 676, 682 (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.” Id. 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 47 U.S.C. § 230(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.

Id. at 1103 (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, 824 F.3d 846

(negligent failure to warn claim survived § 230 immunity);

Lemmon v. Snap, Inc., 995 F.3d 1085 (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, 570 F.3d

at 1102 (“[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.’” Id.

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, 570 F.3d at 1107.

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,

995 F.3d at 1087. 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. Id. 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. Id. at 1089. The boys

operated the filter moments before their deaths. Id. at 1088.

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.” Id. at 1089. 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, 824 F.3d at

848. Plaintiff created a profile on the website Model

Mayhem, owned by Internet Brands, advertising her services

as a model. Id. 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. Id. at 848–49. Yet the owners did not warn

plaintiff, and she fell victim to the scheme. Id. at 848. 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. Id. at 851. After all, plaintiff had

posted her own profile on the website, and did not allege that

the rapists had posted anything on the website. Id.

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 47 U.S.C. § 230(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.” Id. at 1098 (brackets in original)

(quoting Barnes, 570 F.3d at 1102). 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. Id. Finally, the third Barnes prong

was satisfied because the content was clearly developed by

others, not the defendant. Id. at 1098. 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. Id. at 1099.

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.