This Report summarizes cases granted review on October 3, 2022
Case Granted Review: Gonzalez v. Google LLC, 21-1333
Gonzalez v. Google LLC, 21-1333. Section 230(c)(1) of the Communications Decency Act (CDA) immunizes interactive computer services such as YouTube, Google, Facebook, and Twitter for publishing information provided by another. The question presented is whether Section 230 immunizes interactive computer services when their algorithms make targeted recommendations of information provided by another. Petitioners are family members and the estate of the victim of a fatal terrorist attack in Paris by the group known as ISIS. Petitioners sued Google under the Anti-Terrorism Act, 18 U.S.C. §2333, which allows United States nationals to recover damages for acts of international terrorism. Petitioners’ allegations included that Google was liable because YouTube (owned by Google) allowed ISIS to post videos and other content to communicate the terrorist group’s message, to radicalize new recruits, and to generally further its mission. They allege that YouTube was an “integral part of ISIS’s program of terrorism,” that Google algorithms recommended ISIS videos to users, and that the recommendations facilitated users’ ability to locate ISIS-related content, thereby assisting ISIS in spreading its message. They also allege that despite Google’s knowledge of ISIS videos on YouTube and its ability to block and suspend ISIS-related accounts, Google did not make substantial or sustained efforts to remove ISIS-related content. Thus, they allege that Google aided and abetted an act of international terrorism. The district court granted Google’s motion to dismiss based on Section 230 immunity. In an opinion addressing three cases, including a case in which the Court also granted certiorari (Twitter v. Taamneh, addressed below), the Ninth Circuit affirmed. 2 F.4th 871.
The Ninth Circuit concluded that Section 230 immunity applies to content recommendations so long as the method for making recommendations treated harmful third-party content equally to other third-party content. The Ninth Circuit determined that the essence of plaintiffs’ claim was that Google did not do enough to block or remove content, which it determined were core functions of publishing; thus, the claims necessarily sought to treat Google as a publisher. Finally, the Ninth Circuit rejected claims that the algorithms recommending content meant that the content was “created or developed” by Google, applying a test that looks to whether a website “materially contributes” to the unlawfulness of the conduct. The Ninth Circuit concluded that so long as the algorithms do not treat ISIS-created content differently than other third-party content, they were merely “neutral tools” to facilitate communication and content of others.
Petitioners argue that Section 230, passed in 1996 to protect internet service providers from strict liability laws regarding publishing defamatory information, was intended to address traditional editorial functions and not the extraordinary impact that sophisticated, algorithm-based recommendations can have. Addressing the statutory text, petitioners argue that the act of recommending content to users is not acting as a “publisher,” but instead is akin to reviewers or critics who recommend content, whom “no one would describe as the ‘publisher.’” They argue that Google’s allowing the content to be posted on its website and recommending the content are two separate acts, and only a lawsuit based on the former would seek to treat Google as a publisher and thus entitle it to immunity. Petitioners also point out that the recommendations are not themselves a communication from a third party but rather are from the interactive service itself. Petitioners rebut arguments from the Ninth Circuit and other cases by distinguishing search engines (which, they argue, are unlike recommendations because they facilitate users’ control of the information they receive) and arguing that recommending or notifying users of available content, even if it facilitates communication, does not make one a “publisher” of the content.
