April: In lawsuit against Google involving ISIS recruitment videos, a chance for the court to take up Section 230

In a 2020 statement respecting the denial of certiorari in Malwarebytes Inc. v. Enigma Software Group USA, LLC, Justice Clarence Thomas wrote that “in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” Thomas was referring to Section 203(c)(1) of the Communications Decency Act, which states: “No provider or user of an interactive computer service shall be treated as the publisher of or speaker of information provided by another information content provider.” Congress passed this law in 1996 after a New York court held an internet service provider liable for a defamatory statement posted on the website’s message board. “And in the 24 years since,” Thomas wrote in Malwarebytes, the justices “have never interpreted this provision. But many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.”

The petition in Gonzalez v. Google LLC tries to present itself as the case Thomas has been looking for. Reynaldo Gonzalez sued Google under the AntiTerrorism Act for the death of his daughter during an ISIS attack at a Parisian bistro in November 2015. Gonzalez claims that Google assisted and aided ISIS’s recruitment through YouTube videos. Acknowledging that Section 230 protects Google for ISIS’s posting of videos on YouTube, Gonzalez in his petition focuses on an allegation that Google “recommended ISIS videos to users.” Through its algorithms, Gonzalez maintains, Google presented ISIS videos to and targeted those users whose characteristics indicated that they could be interested in such content.

The district court dismissed Gonzalez’s claim on the ground that Section 230 nonetheless protected Google for its recommendations because ISIS produced the videos, not Google. The U.S. Court of Appeals for the 9th Circuit affirmed, concluding that Section 230 protects such recommendations, at least if the provider’s algorithm treated content on its website similarly. However, the panel in Gonzalez considered itself bound to reach this result because of a recent case on the same issue that another 9th Circuit panel decided while Gonzalez was pending. The Gonzalez panel further concluded that, if it could resolve the question itself, Section 230 would not protect a provider’s content recommendations.

SCOTUS agreed to take up Gonzalez v. Google today.

repeats of repeats. Google and FB are publishers. Publishers can be sued; monopolies can be broken up. Publisher or platform: pick one. The law needs to change.

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Reason (probably a first, forgive me)

In the second case, Twitter v. Taamneh, the Court will consider under the same section of the Anti-Terrorism Act whether Twitter can be found to be aiding and abetting terrorists (and, as with the last case, be held liable for damages in civil court) because its service is used by terrorists, even though Twitter forbids such use and actively removes accounts of terrorists when they're found. The plaintiffs in this case are relatives of Nawras Alassaf, who was killed in a terrorist attack by an ISIS member at a nightclub in Istanbul, Turkey, in 2017. According to Twitter's petition, the terrorist responsible for the attack wasn't even using its service. The plaintiffs insist that because other terrorists have been found to be using Twitter, it can nevertheless be held liable for not taking enough "proactive" action to stop terrorists from accessing the platform....

The U.S. 9th Circuit Court of Appeals ruled in January on both the Google and the Twitter cases in the same decision. The court decided that Google was shielded by Section 230 but that Twitter could be held financially liable for terrorists using its platform, even if the actual terrorist involved wasn't using Twitter. This decision linked the two cases together, which can explain why the Court took up both of them.

The 9th Circuit decision is absurd. It should have been the reverse.