Section 230 Does Not Immunize App Stores for Selling Illegal Casino Chips, EPIC Tells 9th Circuit  

On Friday, EPIC filed an amicus brief in three related cases before the Ninth Circuit, urging the Court not to use Section 230 to give app stores unprecedented immunity for brokering illegal transactions. This case is just the latest in which tech companies have sought to stretch Section 230 into an immunity protecting them from liability for virtually all unlawful conduct. 

This appeal came out of litigation over the rise of casino-style games on app stores, which encourage users to spend real money on virtual chips used to gamble within the app. The plaintiffs allege that these games violate state gambling laws. They seek to hold Google, Meta, and Apple liable for their role in acting as the payment processor for these illegal games. 

Instead of addressing these claims on the merits, Google, Meta, and Apple sought to dismiss the suits on Section 230 grounds. They argued that brokering illegal casino transactions constitutes publishing activity, and that Section 230 also bars the claims because it would require them to “monitor” the apps for which they process payment. The Plaintiffs argued that processing illegal payments is distinct from publishing, and that the claims do not treat the Defendants as publishers, and thus Section 230 does not apply. The district court sided with the Plaintiffs but certified the order for appeal, allowing it to go before the Ninth Circuit. 

EPIC’s brief supports the Plaintiffs’ argument. The brief traces Ninth Circuit precedent and the history of Section 230 to show that the statute fundamentally serves to prevent lawsuits that would force platforms into the “moderator’s dilemma”—the undesirable situation in which platforms must either removal all harmful or illegal content, remove none, or stop hosting third-party content entirely. Holding app stores liable for brokering illegal gambling transactions would not have this effect. By contrast, giving the app stores Section 230 protection would give these companies a dangerous immunity to facilitate unlawful transactions that other payment processors do not have. 

This is the second time this case has gone before the Ninth Circuit. EPIC filed an amicus brief in support of the Plaintiffs in the first appeal in 2023, before the Court dismissed the appeal and remanded the case back to the district court.