Scarinci: The U.S. Supreme Court Takes on the Internet

While the United States Supreme Court won’t break the internet, they might significantly change it.  

Two things are possible when the high court decided Gonzalez v. Google.  They could significantly change how companies like Google, Meta, and Twitter operate; or, the Court could issue a narrow decision that says Congress is far better equipped to bring Section 230 into the modern age.  

Section 230 Immunity 

In 1996, when Section 230 of the Communications Decency Act (Section 230) was enacted, two of the biggest tech players were Prodigy and AOL. There were approximately 45 million people using the internet, and the average time spent online per month was 30 minutes, compared to today’s 27 hours per month. 

To help foster the development of the internet, Congress enacted the Communications Decency Act (CDA). Section 230 provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The goal was to protect internet companies from being held strictly liable in state law defamation actions because they had permitted other parties to post defamatory materials on the companies’ websites, such as chat rooms or online forums. 

As the internet has grown, so too has the protection afforded to “interactive computer services.” It is generally accepted that protections of Section 230 apply to services like YouTube, Google, Facebook, and Twitter insofar as it permits a third party to post material it has created on the services’ websites. The question that has divided the federal courts of appeal is whether Section 230 applies when these services recommend to users that they view particular third-party materials.  

Gonzalez v. Google 

The case currently before the Supreme Court, Gonzalez v. Google, involves the application of Section 230 to YouTube’s selection and arrangement of third-party content to display to users, which is often referred to as “targeted recommendations.” The suit was filed by the estate and family members of Nohemi Gonzalez, an American woman killed during a November 2015 terrorist attack in Paris, France.  

The Islamic State, also known as ISIS, claimed responsibility for the content, but the victim’s family filed suit against Google. The suit alleged that, by operating YouTube, Google incurred liability under the Anti-Terrorism Act (ATA), and committed or abetted “an act of international terrorism” that caused Gonzalez’s death. The family did not allege that Google had any role in encouraging or committing the Paris attack, but rather argued that YouTube’s algorithms promoted ISIS content to “users whose characteristics indicated that they would be interested in ISIS videos.”  

In defense of the suit, Google asserted that the claims are barred by Section 230. A divided Ninth Circuit of Appeals agreed, holding that a recommendation is protected by Section 230 at least so long as the defendant’s method for making recommendations (e.g., the algorithms), did not treat harmful other-party content “differently than other other-party created content.”  

In appealing the decision to the U.S. Supreme Court, the petitioners argue that YouTube actively promoted dangerous speech through an algorithm it created, which removed it from the protection of Section 230. During oral arguments, several justices noted that siding with the plaintiffs would eviscerate Section 230. As Justice Elena Kagan explained, algorithms “are endemic to the internet; every time anybody looks at anything on the internet, there is an algorithm involved.” 

Justice Brett Kavanaugh also raised concerns about the implications of adopting the plaintiffs’ position: “It would mean that the very thing that makes the website an interactive computer service also mean that it loses the protection of [Section] 230. And just as a textual and structural matter, we don’t usually read a statute to, in essence, defeat itself.” Justice Ketanji Brown Jackson disagreed, arguing that Section 230 was never intended to be so broad.  

 Several justices also suggested that the Court shouldn’t be the one redefining the limits of Section 230 immunity. “We’re a court. We really don’t know about these things,” Justice Kagan said. “You know, these are not like the nine greatest experts on the internet.” Justice Kavanaugh agreed, suggesting it should be left to Congress to amend the statute: “Isn’t it better to keep it the way it is [and] put the burden on Congress to change that?”  

At this point, it is unclear how the Court will rule, although most of the justices appear unwillingly to “break” the internet. Instead, the Court may strive to find an interpretation of Section 230 that still protects internet service providers from being inundated with lawsuits, while also allowing claims related to discriminatory content recommendations.