For the first time in the law’s more than quarter-century-long history, Section 230 of the Communications Decency Act (CDA) has been taken under consideration by the Supreme Court of the United States.
Earlier this week, the court heard oral arguments in Gonzalez v. Google LLC, giving the public a glimpse into the high Court’s deliberations over the future of Section 230.
Section 230, the 1996 provision aimed at facilitating the Internet’s development while avoiding a chilling effect on speech, grants broad immunity for Internet platforms against liability for content published by others. As the capabilities and functionalities of Internet services plunge further and further afield from what could be imagined in the late 1990s, the Supreme Court’s determination in Gonzalez v. Google could radically retool tech companies’ ironclad immunity against liability for the content they host.
Gonzalez v. Google centers around the death of Nohemi Gonzalez, a 23-year-old student killed in a 2015 ISIS attack in Paris. The suit alleges that Google participated in terrorist recruitment and promotion by hosting videos created by ISIS on its platforms, algorithmically recommending terrorist content to users who would be interested in viewing it, placing paid advertisements in proximity to ISIS-created content, and splitting the resulting ad revenue with ISIS. The plaintiffs filed suit under the Anti-Terrorism Act (ATA), alleging that the defendants were liable for committing acts of international terrorism and secondarily liable for conspiring with, and aiding and abetting, ISIS’s acts of international terrorism. The heart of the issue is whether or not Section 230 grants immunity for computer services when they are making recommendations for content and information from a third-party.
This case has garnered significant national interest. An exceptionally long line of visitors assembled outside the Supreme Court on February 21 to be admitted to hear oral arguments in person. In the run-up to oral arguments, various high-profile advocacy organizations, as well as current and former lawmakers including Sen. Ted Cruz (R-Texas), Sen. Josh Hawley (R-Mo.), former Sen. Rick Santorum (R-Pa.), filed amicus briefs representing a diverse set of views.
The Court’s question-and-answer session with attorneys representing the plaintiff and respondent illuminated aspects of each justice’s thinking on Section 230. Chief Justice John Roberts ventured an analogy that resurfaced repeatedly throughout Q&A:
A book seller that has a table with sports books on it and somebody comes in and says, ‘I’m looking for the book about Roger Maris,’ and the bookseller says, ‘Well, it’s over there on the table with the other sports books.’ Isn’t that analogous to what’s happening here? You type in ISIS . . . You could look at that and say it’s not pitching something in particular to the person who’s made the request. It is recognizing that it’s a request about a particular subject matter and it’s there on the table, and they might want to look at that or they may not want to look at it. But it’s really just a 21st-century version of what has taken place for a long time in many contexts, which, when you ask a question, people are putting together a group of things, not necessarily precisely answering your question.
In the shadow of these arguments lay a separate but related proceeding to be heard on February 22. In Twitter v. Taamneh, a related case concerning a Jordanian citizen killed in an ISIS attack, the court is “considering whether social media companies can be sued for aiding and abetting an act of international terrorism after hosting content that generally expressed support for ISIS but that did not refer to a specific act of terror.”
The Court will now deliberate on whether Google’s targeted recommendations can be shielded from liability under Section 230 and will release its opinion in the months to come. A potential retooling of Section 230 would send shockwaves throughout the content creation and distribution space, with impacts on internet services and users of every political and ideological stripe. The NRB will continue to closely monitor judicial activity on this matter.