Millan v. Facebook CA1/4

Filed 3/25/21 Millan v. Facebook CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or

ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

RODRIGO DE SOUZA MILLAN,

Plaintiff and Appellant,

A161113

v.

FACEBOOK, INC., (San Mateo County

Super. Ct. No. 19-CIV-06350)

Defendant and Respondent.

Plaintiff Rodrigo De Souza Millan appeals from a judgment after the

trial court sustained defendant Facebook, Inc.’s demurrer to Millan’s

amended complaint without leave to amend. We agree with the trial court

that Millan’s complaint failed to state any viable claim against Facebook, so

we will affirm the judgment.

I. BACKGROUND1

Millan alleged in his amended complaint that he posted a comment on

Bill Gates’s Facebook page related to global warming. Millan posted this

comment as part of an attempt to sell his services, and the comment was not

objectionable. When Millan logged off of his account and logged back in

under a different account, he discovered the comment he had posted was

hidden. He logged back in again using his first account and saw his

1 The facts set forth herein are taken from Millan’s amended complaint.

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comment. Millan alleged this demonstrated that Facebook was trying to

deceive him into thinking he had posted a publicly visible comment, when in

fact the comment was not visible.

Millan alleged eight claims based on these facts. His first four claims

were based on section 230(b)(2)–(3), (b)(5), and (c)(2)(A) of the

Communications Decency Act (47 U.S.C. §§ 230 et seq.).2 He also alleged a

claim for discrimination in public accommodations under section 2000a(a) of

the federal Civil Rights Act (42 U.S.C. §§ 1981 et seq.); a claim for

discrimination in communications under 47 U.S.C section 202; a claim for

interception of electronic communications under 18 U.S.C. section 2511(1)(a);

and a wire fraud claim under 18 U.S.C. section 1343.

The trial court sustained Facebook’s demurrer to these claims without

leave to amend. Plaintiff appealed.

II. DISCUSSION

“ ‘In reviewing an order sustaining a demurrer, we examine the

operative complaint de novo to determine whether it alleges facts sufficient to

state a cause of action under any legal theory.’ [Citation.] ‘ “ ‘ “We treat the

demurrer as admitting all material facts properly pleaded, but not

contentions, deductions or conclusions of fact or law. . . . We also consider

matters which may be judicially noticed.” . . . Further, we give the complaint

2Millan’s complaint cited section 230(c)(A) of the Communications

Decency Act (47 U.S.C. §§ 230 et seq.). There is no such subsection in the

statute, so we assume he intended to cite section 230(c)(2)(A).

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a reasonable interpretation, reading it as a whole and its parts in their

context.’ ” ’ ” (Mathews v. Becerra (2019) 8 Cal.5th 756, 768.)3

Millan’s first three claims in his amended complaint are based on

section 230(b) of the Communications Decency Act (47 U.S.C. §§ 230 et seq.).

That statute provides, in pertinent part, “It is the policy of the United

States—[¶] . . . [¶] (2) to preserve the vibrant and competitive free market

that presently exists for the Internet and other interactive computer services,

unfettered by Federal or State regulation; [¶] (3) to encourage the

development of technologies which maximize user control over what

information is received by individuals, families, and schools who use the

Internet and other interactive computer services; [¶] . . . and [¶] (5) to ensure

vigorous enforcement of Federal criminal laws to deter and punish trafficking

in obscenity, stalking, and harassment by means of computer.” (47 U.S.C.

§ 230(b).) Millan’s amended complaint alleges Facebook failed to carry out

these policies, but Millan has cited no authority and provided no argument

for why Facebook’s failure to follow these policies could render it liable to

him. The plain language of the statute shows that these are merely

expressions of Congressional policy. These policies are not substantive

provisions that provide a basis for liability, nor do they create a private right

of action. (See Belknap v. Alphabet, Inc. (D. Or., Dec. 1, 2020, No. 3:20-CV-

1989-SI) ___ F.Supp.3d ___, 2020 U.S. Dist. Lexis 224564, at *7–*8

[allegation that company deleted online posts did not allege a violation of 47

U.S.C. § 230, and even if it did, it is unlikely there would be a private right of

3 We note that plaintiff does not argue on appeal that he could amend

his claims to cure the deficiencies identified by the trial court, nor does he

contend that he could allege new, viable causes of action not set forth in his

amended complaint.

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action to enforce the violation].) The trial court correctly sustained

Facebook’s demurrer to Millan’s first three claims.

Millan’s fourth claim rests on section 230(c)(2)(A) of the

Communications Decency Act (47 U.S.C. §§ 230 et seq.). According to that

provision, “No provider or user of an interactive computer service shall be

held liable on account of—[¶] (A) any action voluntarily taken in good faith to

restrict access to or availability of material that the provider or user

considers to be obscene, lewd, lascivious, filthy, excessively violent,

harassing, or otherwise objectionable, whether or not such material is

constitutionally protected.” (47 U.S.C. § 230(c)(2).) Millan alleges Facebook

failed to follow this provision by blocking his content based on discrimination

and hate, rather than one of the acceptable reasons listed in the statute. But

this provision provides an immunity, so even if Facebook acted

discriminatorily, at most that would deprive it of the immunity that the

statute provides. Millan has not explained how Facebook’s failure to acquire

immunity under section (c)(2)(A) could establish its liability to him, so the

trial court correctly sustained Facebook’s demurrer to this claim. (See

Belknap v. Alphabet, Inc., supra, 2020 U.S. Dist. Lexis 224564, at *7 [plaintiff

failed to state a claim under 47 U.S.C. § 230 in part because the statute

provides immunity].)

Millan’s fifth claim alleges Facebook deprived him of the full and equal

enjoyment of Facebook.com, in violation of section 2000a(a) of the Civil

Rights Act (42 U.S.C. §§ 1981 et seq.). That statute establishes, “All persons

shall be entitled to the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, and accommodations of any place of public

accommodation, as defined in this section, without discrimination or

segregation on the ground of race, color, religion, or national origin.” Millan

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alleges in his amended complaint that Facebook discriminated against him

by blocking his post because it wanted to stop him from selling his services.

Putting aside the question of whether Facebook constitutes a “public

accommodation,” the statute does not prohibit businesses from discriminating

on this basis. As Millan nowhere alleges that Facebook acted against him

based on one of the classifications the Civil Rights Act prohibits, he has failed

to state a claim on which relief can be granted under that Act.

In his sixth claim, Millan alleges Facebook violated 47 U.S.C. section

202 by its “[d]iscrimination and [p]reference practices with communications.”

47 U.S.C. section 202(a) makes it “unlawful for any common carrier to make

any unjust or unreasonable discrimination in charges, practices,

classifications, regulations, facilities, or services for or in connection with like

communication service, directly or indirectly, by any means or device, or to

make or give any undue or unreasonable preference or advantage to any

particular person, class of persons, or locality, or to subject any particular

person, class of persons, or locality to any undue or unreasonable prejudice or

disadvantage.” Millan contends Facebook qualifies as a common carrier for

the purposes of this statute because it falls within the statutory definition of

a “common carrier” as “any person engaged as a common carrier for hire, in

interstate or foreign communication by wire or radio or in interstate or

foreign radio transmission of energy.” (47 U.S.C. § 153(11).) He also cites the

statutory definition that “ ‘communication by wire’ means the transmission of

writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable,

or other like connection between the points of origin and reception of such

transmission.” (47 U.S.C. § 153(59).) Separately, Millan argues Facebook

also qualifies as a common carrier because it is a “telecommunications

carrier.” A “telecommunications carrier is a provider of telecommunications

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services, which are “the offering of telecommunications for a fee directly to

the public, or to such classes of users as to be effectively available directly to

the public, regardless of the facilities used.” (47 U.S.C. § 153(51), (53).) A

telecommunications carrier is treated as a common carrier, subject to

exceptions not relevant here. (47 U.S.C. § 153(51).)

Millan’s reliance on these provisions is misplaced. First, Facebook does

not satisfy the definition of a “common carrier.” Millan’s complaint may be

liberally construed to allege that Facebook generates digital signals in the

form of “binary communication codes,” as he puts it, but he does not allege

that Facebook transmits these signals from their point of origin to their point

of reception. Indeed, such allegations would be contrary to the general

operation of the Internet, in which some companies create digital content and

others own and operate the wires and other infrastructure that transmits the

digital content to users. (See United States Telecom Ass’n v. Federal

Communications Commission (D.C. Cir. 2016) 825 F.3d 674, 690.)

Nor does Facebook qualify as a common carrier by virtue of meeting the

definition of “telecommunications carrier” as a provider of

“telecommunications services.” The definitions Millan relies on, like

47 U.S.C. section 202(a) itself, are part of the Communications Act of 1934

(47 U.S.C. § 151 et seq.), which “divides the world of relevant technologies

into two buckets: ‘information services’ subject only to minimal regulation,

and ‘telecommunications services’ subject to the common carriage

requirements.” (Mozilla Corporation v. Federal Communications Commission

(D.C. Cir. 2019) 940 F.3d 1, 88 (conc. opn. of Millett, J.); see National Cable &

Telecommunications Ass’n v. Brand X Internet Services (2005) 545 U.S. 967,

975 [“The Act regulates telecommunications carriers, but not information-

service providers, as common carriers”].) The distinction between

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telecommunications services and information services turns on whether a

given service is merely transmitting data back and forth from a user, or

whether the service also offers “a capability for generating, acquiring, storing,

transforming, processing, retrieving, utilizing, or making available

information via telecommunications.” (47 U.S.C. § 153(24); National Cable,

at pp. 976–977.)

Millan alleges in his complaint that Facebook allowed him to post a

comment, which Facebook then stored and displayed back to Millan when he

logged in again under the same account. Thus, according to Millan’s

allegations, Facebook acquired his comment, stored it, and then made it

available to Millan for retrieval later. According to Millan’s complaint, then,

Facebook qualifies as an information service and is not subject to 47 U.S.C.

section 202(a). Millan’s sixth claim therefore fails.

Millan’s seventh claim alleges Facebook failed to follow 18 U.S.C.

section 2511(1)(a) in that it intentionally intercepted electronic

communications for years. With exceptions not relevant here, 18 U.S.C

section 2511(1)(a) states that anyone who “intentionally intercepts, endeavors

to intercept, or procures any other person to intercept or endeavor to

intercept, any wire, oral, or electronic communication” is subject to a fine or

imprisonment. (18 U.S.C. § 2511(1)(a), (4).) Though Millan does not cite it, a

separate statute creates a private right of action for anyone whose wire, oral,

or electronic communication is intercepted, disclosed, or intentionally used in

violation of the law. (18 U.S.C. § 2520(a).) Interception is defined as ‘the

aural or other acquisition of the contents of any wire, electronic, or oral

communication through the use of any electronic, mechanical, or other

device.” (18 U.S.C. § 2510(4).)

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Millan alleges no facts that would support a claim under these statutes.

Millan’s conclusory allegation that Facebook intercepted electronic

communications for years is insufficient, and Millan’s complaint fails to

otherwise identify any specific communications that Facebook intercepted.

Millan’s allegation that Facebook took his post and fraudulently made it

appear as though it were visible to the public on Bill Gates’s Facebook page

does not satisfy the statute. According to Millan’s own allegations, he

voluntarily provided the comment to Facebook in the expectation that

Facebook would display it publicly. Millan does not explain how the statute

can be construed to prohibit this. (See 18 U.S.C. § 2511(2)(g)(i) [it is not

unlawful “to intercept or access an electronic communication made through

an electronic communication system that is configured so that such electronic

communication is readily accessible to the general public”]; Kimbrell v.

Twitter, Inc. (N.D. Cal., Feb. 14, 2019, No. 18-CV-04144-PJH) 2019 U.S. Dist.

Lexis 24525, at *9–*10 [claim under 18 U.S.C. § 2511 based on allegation

that company intercepted public internet posts failed because of 18 U.S.C.

§ 2511(g)(2)(i)].) Millan’s seventh claim therefore fails to state a claim upon

which relief can be granted.

In his eighth and final claim, Millan alleges that Facebook violated

18 U.S.C. section 1343 by falsely representing his electronic transmissions.

That statute establishes penalties for anyone who “having devised or

intending to devise any scheme or artifice to defraud, or for obtaining money

or property by means of false or fraudulent pretenses, representations, or

promises, transmits or causes to be transmitted by means of wire, radio, or

television communication in interstate or foreign commerce, any writings,

signs, signals, pictures, or sounds for the purpose of executing such scheme or

artifice.” (18 U.S.C. § 1343.) 18 U.S.C. section 1343 is a criminal statute,

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and it does not create a private right of action for damages. (Wisdom v. First

Midwest Bank (8th Cir. 1999) 167 F.3d 402, 408–409.) Millan cannot state a

claim for relief based on this statute.

DISPOSITION

The judgment is affirmed.

BROWN, J.

WE CONCUR:

POLLAK, P. J.

TUCHER, J.

Millan v. Facebook, Inc. (A161113)

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