# Millan v. Facebook CA1/4

> California Court of Appeal · March 26, 2021

URL: https://www.frixlaw.com/law-library/cases/4671905

## Case

- **Court:** California Court of Appeal
- **Decided:** March 26, 2021
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4671905

## Opinion text

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

1
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).

2
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.

3
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

4
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

5
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

6
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).)

7
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,

8
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)

9

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4671905. Public record. Not legal advice.