At the peak of the abuse Matthew Herrick suffered, 16 men showed up every day at his door, each one expecting either violent and degrading sex, drugs, or both. Herrick, a 32-year-old aspiring actor living in New York City, didn’t know any of them, but the men insisted they knew him — they’d just been chatting with him on the dating app Grindr. This scenario repeated itself more than 1,000 times between October 2016 and March 2017.
Herrick had deactivated his account and deleted the Grindr app from his phone in late 2015 when he’d started dating a man referred to in court documents as J.C., whom he’d met on the app. The two broke up in fall 2016. Soon after, according to court filings, J.C. began stalking Herrick and created fake profiles on Grindr impersonating Herrick and using screen names like “Raw Pig Bottom” and “Gang Bang Now!” The profiles falsely claimed Herrick was HIV-positive, interested in unprotected sex and bondage, and that he was “Looking for a group of hung tops to come over and destroy my ass.” Through Grindr, Herrick says J.C. directed these men to his apartment or workplace, creating a world of chaos for him on a daily basis.
“It was a horror film,” Herrick told BuzzFeed News in an interview. “It’s just like a constant Groundhog Day, but in the most horrible way you can imagine. It was like an episode of Black Mirror.”
Protective orders and police reports against J.C. failed to stop the torrent of harassment. Herrick, his friends, and lawyers submitted 100 complaints to Grindr asking it to block J.C., but they received no response. Eventually, Herrick took Grindr to court in an attempt to force it to do something to stop the nightmare. Grindr argued that under federal law, it didn’t have to help Herrick, and in February 2017, a federal judge agreed.
Now Herrick’s lawyers are arguing that the judge got it wrong. On Monday, they took their case before the US Court of Appeals for the 2nd Circuit, whose decision could have far-reaching consequences on what apps and social media companies must do to combat harassment on their platforms. At the heart of the dispute is how much protection a 1996 law — Section 230 of the Communications Decency Act — gives a website or app against liability for atrocious acts committed on its platform by users. It’s the law that protects Twitter from being sued for controversial tweets, and guards against Yelp being taken to court over negative restaurant reviews by users. But a growing coalition of consumer protection groups and advocates for victims of intimate partner violence say Section 230 gives companies an incentive to turn a blind eye to abuse.
The case represents a stark division between lawyers sounding an alarm over domestic abusers increasingly using smartphones and online services to track and harass their partners, and digital rights groups who fear the erosion of free speech online.
J.C. was arrested on Oct. 23, 2017, and has been charged with stalking, criminal impersonation, making a false police report, and disobeying a court order. J.C.’s next hearing was scheduled for Thursday. He has pleaded not guilty and is being held on a $500,000 bond.
“The whole thing is horrible,” said Judge Dennis Jacobs, one of three judges hearing Herrick’s appeal. “But the question is, what’s the responsibility of Grindr?”
Very little, according to the judge who ruled in Grindr’s favor in 2017. “I don’t find what Grindr did to be acceptable,” US District Court Judge Valerie E. Caproni said at the time. But under Section 230, she ruled, a dating app like Grindr couldn’t be sued because one of its users harassed someone through the platform.
In court Monday, Tor Ekeland, one of Herrick’s lawyers, also questioned whether Grindr had continued to track Herrick’s location even after Herrick quit using the app.
“There are too many unanswered questions in this case,” Ekeland argued in a Manhattan courtroom packed with curious law students and supporters of Herrick. Grindr’s attorneys said it was “magical and implausible” that Herrick was tracked after leaving the app.
The appeals court didn’t say when it would issue a ruling. It’s the first time it has considered Section 230 on a case involving an app, let alone one based on geolocation technology, but Grindr’s lawyers say that doesn’t change things.
“The geolocation is a neutral system,” Daniel P. Waxman, one of Grindr’s attorneys, said in court Monday. “It’s open to good users and to bad users.”
Herrick’s lawyers say this case goes beyond Section 230 because Grindr knows it has put a dangerous product on the market with no means of filtering out bad actors, even when it knows someone like J.C. is abusing the platform. Grindr could hire more people to handle complaints, identify and ban serial harassers as Twitter has, or implement technology like Facebook is using to stop revenge porn, but has decided it’s cheaper to do nothing and hide behind Section 230 for protection, they say.
“It’s almost the cost of doing business for Grindr that there are going to be some people whose lives are going to be ruined by the product,” Carrie Goldberg, one of Herrick’s attorneys, told BuzzFeed News.
Grindr did not respond to repeated requests for comment from BuzzFeed News. In a court filing, the company stated it is a “safe space” for gay, bisexual, trans, and queer people to connect, and that to provide users with flexibility and discretion on their dating and sex lives, it asks for very little information and does not verify profiles. If someone wanted to, Grindr’s lawyer said in a 2017 court hearing, they could simply keep creating new profiles tied to different email addresses and the app likely would never catch them.
Grindr’s protection of user privacy has repeatedly been called into question. Last year, a BuzzFeed News report revealed that the app had been disclosing users’ HIV status — tied to their GPS data, phone ID, and email — to two external companies. Initially, Grindr said sharing the data was standard practice in the industry, but then announced it would stop doing it, “based on the reaction — a misunderstanding of technology — to allay people’s fears.” Herrick’s attorneys also pointed in court filings to another BuzzFeed News story noting that Grindr has in the past exposed the precise locations of users, and failed to implement the simple tweak needed to fix the problem.
Two other companies say they were able to halt the harassment that Grindr says it was unable to stop in Herrick’s case. Scruff and Jack’d, both location-based chat and dating apps catering to gay and bisexual men, told BuzzFeed News they were able to weed out and stop the abuse incited by Herrick’s ex on their platforms, though to protect trade secrets, neither would provide specifics.
For Grindr to call itself a “safe space” for the gay community, Herrick said, is a “facade.”
“They create this idea of who they are and who we as the gay community want them to be, but they were never that, and they will never be that,” Herrick told BuzzFeed News. “They always will just want to print more money.”
New York City is Grindr’s biggest market in the US, where some 426,000 users are located. Unlike dating apps such as Tinder or Bumble, which only have age- and gender-based filters, Grindr displays a grid of potential dates who can be narrowed by body type, sexuality, or type — clean-cut, geek, or jock, for instance — and their proximity at that moment to other users. Exhibits filed in court include screenshots of the fake profiles of Herrick showing him pinpointed to as close as 104 feet away from interested men.
Some of the men who showed up to meet Herrick would not leave once he told them there had been a mistake. Some followed Herrick into the prep kitchen or bathroom at the restaurant where he worked, while others waited outside his workplace or his Manhattan apartment for a half hour or longer. Six men arrived within a few minutes of each other one day. On multiple occasions, according to Herrick’s civil complaints, men appeared to be high on drugs, verbally berated Herrick as a “lying whore,” and had to be physically thrown out when Herrick told them to leave. J.C. handed out Herrick’s phone number too, once resulting in 75 text messages from different numbers in a 24-hour period, Herrick told BuzzFeed News.
Herrick was certain J.C. was behind it. He once witnessed J.C. across the street from his apartment watching the men come and go, Herrick told BuzzFeed News. Herrick said he also received text messages from J.C. noting what Herrick was doing at that moment. Herrick filed 14 police reports and obtained a protective order prohibiting J.C. from contacting him, according to the lawsuit, but it was impossible to prove J.C. was behind the online activity without Grindr’s cooperation, and the impersonation on Grindr continued.
Sadie Diaz, a lawyer for the nonprofit Sanctuary for Families, which helps victims of domestic violence, said Herrick wasn’t interested in taking down Grindr; he just wanted his life back. “There were up to 16 people showing up at his job and home every day, bothering his roommates, expecting sex, interfering with his work, interfering with his sleep,” said Diaz, who helped Herrick obtain protection orders. “He just wanted it to stop.”
On Jan. 27, 2017, a New York state judge issued an order requiring Grindr to search for and shut down the fake profiles. Until Herrick went to court, the only responses he received from Grindr were auto-replies acknowledging receipt of his complaints, according to his lawyers.
Grindr moved the case to federal court to fight it using Section 230, setting in motion Herrick’s lawsuit against the company.
Grindr said in court that it couldn’t stop J.C. without knowing which accounts were the impersonations of Herrick. Grindr’s lawyers suggested at one point that Herrick should ask the men approaching him to see their phones so he could flag the fake profiles, Goldberg told BuzzFeed News.
Some cyberlaw experts fear a ruling against Grindr will put the creativity of the internet as we know it at risk. They say that requiring platforms to more closely monitor users would give an advantage to tech giants like Facebook, Twitter, and Google while hindering smaller startups with niche audiences, including Grindr. It would be more expensive to start new businesses online because of the cost of hiring watchdogs, said Jennifer Granick, surveillance and cybersecurity counsel at the American Civil Liberties Union.
“As bad as this [case] is, the principle behind Section 230 — which is, ‘let people be liable for their own speech’ — is the reason we are able to use the internet as this incredible platform for free speech and creativity today,” Granick told BuzzFeed News.
It would be a mistake to conflate a platform’s ethical duty — whether Grindr should have done more to take down harassing content after it was flagged — with whether the company should bear financial liability, said Lisa Hayes, general counsel for the nonprofit Center of Democracy and Technology.
“What we’re grappling with,” Hayes said, “is that the internet is now being used to showcase the worst of people. … But there’s a real risk to the internet economy if 230 is weakened.”
But the Electronic Privacy Information Center, which split from other digital rights groups and filed an amicus brief in support of Herrick, sees a different kind of privacy violation in this case — the unauthorized disclosure of Herrick’s address, phone number, and photos. Grindr might have had to dive deeper into personal data to identify and block Herrick’s harasser, but “if there’s immunity for platforms, then an individual cannot seek any recourse at all,” said Alan Butler, a lawyer for EPIC.
Once the case landed in federal court, news outlets started covering it, and Herrick said he soon began to see how many more people were in similar predicaments, seemingly without options.
“When this all started I got hundreds of emails and messages on Facebook and on Instagram,” Herrick said. “People who were telling me their own story, people who were asking me what they should do. I think it opened doors for people. For a long time, I would ask myself, I’m a 32-year-old man, how am I a victim of this, how is this happening to me? And in those words alone there is so much blame and embarrassment in it.”
A majority of intimate partner violence cases now involve some form of harassment through technology, according to domestic abuse shelters and victims advocates. One recent survey of teens found victims of digital harassment are likely to be physically abused or experience sexual coercion.
Congress signed Section 230 into law with an expectation that tech companies will act morally responsibly when presented with abuse of their platforms, experts told BuzzFeed News. Diaz said clients of Sanctuary for Families have had similar experiences with impersonation on Facebook, for example, but they were able to work with the social media giant to address the problem.
“Some tech companies are doing the right thing and some are not,” Diaz said. “The problem with 230 is that the ones who are not have no profit motivation to take any action to prevent their platform from being used for abuse.”
The other two dating apps for gay, bisexual, and transgender men that assisted Herrick portrayed it as an easy call. Mark Girolamo, CEO of Jack’d, said, “we are happy that we were able to stop the harassment experienced by Mr. Herrick.”
Eric Silverberg, the cofounder and CEO of Scruff, said an algorithm deployed by the app looks for signals — for example, hypothetically, the quantity of messages sent from one account, certain words in a message, or the location of a profile — then weighs each of them and evaluates whether to take automated action or alert the team to investigate suspicious activity. The process of solving the problem in Herrick’s situation was “not a hard or sophisticated” one, he said.
“Once we were notified of this by the victim, we did an investigation, understood the pattern, and we permanently suspended the perpetrator and his device,” Silverberg told BuzzFeed News.
“If you’re a platform for strangers to meet, you have to apply some baseline of moderation or it will become abuse, as we’ve seen in this case,” Silverberg said. “People can be hurtful to one another, especially when love and romance is part of the equation, and it ends.”
Eric Goldman, a Santa Clara University professor who studies internet law, pointed out that it is never in Grindr’s business interest to ignore abuse on its platform, but that legally compelling Grindr to apply a tech solution might be an even more pernicious alternative. Grindr could end up over-censoring content or surveilling its platform more broadly, and “might end up distorting the marketplace in a way that ends up making us all worse off,” Goldman said. He called Herrick’s lawsuit “an easy Section 230 case.”
Waxman, Grindr’s lawyer, made a similar argument in court Monday, saying that the company didn’t create any of the content and that no one would be there if it weren’t for J.C.
Herrick moved to California a couple months after J.C. was indicted. Coming back for the oral argument in the appeals court was the first time he’d set foot in New York in a year. Even though J.C. is behind bars, Herrick still gets a weird feeling that he could be near. Little things sometimes startle him, like getting a text message from an unknown number.
“I have no idea how I made it through,” Herrick said, but by the time he had to decide whether to file an appeal, he had little hesitation.
“I have a vested interest in this now, not necessarily for myself, but for other people who don’t have a voice in all of this, who are suffering and don’t know what to do,” Herrick told BuzzFeed News. “We have an opportunity to really have people take a look at these laws and these companies and set a precedent that could finally make these companies take action.” ●