February 27, 2023

SCOTUS Hears Argument Against Google, YouTube, Twitter, Facebook

By John P. Campbell and Catherine P. O'Hern

The Supreme Court of the United States heard oral argument last week regarding the protection of interactive computer services, i.e., Google, Facebook, YouTube afforded by Section 230 of the Communications Decency Act of 1996. Specifically, Section 230 immunizes interactive computer service providers from liability arising from content created by third parties posted on their websites because they are not considered the publisher or speaker of any information provided by another. Congress designed Section 230 in the early ages of the Internet to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material without the service providers becoming liable for defamatory or otherwise unlawful messages that they did not edit or delete.

Plaintiff in the case of Gonzales v. Google, LLC seeks to narrow the broad scope of immunity granted by Section 230 and contends that it was enacted at a time when providers had not yet established the sophisticated and ubiquitous algorithms they use today to filter and tailor the specific content they present to users based upon that user’s personal profile, i.e., history of previous searches, activities, and related data obtained from other websites. Gonzales along with a second case argued before the Court, Twitter, Inc. v. Taamneh, were brought by family members of victims of ISIS terrorism against Google, the parent company of YouTube, Twitter, and Facebook alleging that these social media platforms provided support to ISIS.

YouTube’s algorithms create suggested videos for the user, that are similar to those the user is currently viewing.  These suggestions come in the form of “thumbnails” offered to the viewers and are often subtitled “up next,” or ”trending.” The plaintiffs in Gonzales argue that the manner in which YouTube organizes or presents the third-party content in these “thumbnails” could encourage viewers to look at ISIS videos, thus aiding and abetting ISIS. 

In Gonzales, the plaintiffs allege that YouTube, not a third party, is creating content by using its algorithms to make “targeted recommendations” of other ISIS videos for users who already view ISIS videos and such creations are content and not protected from liability under Section 230.  The plaintiffs in Taamneh allege that these online social media networks refused to actively monitor the content posted by third party ISIS and therefore, they should be held liable.

The defendant websites argue that allowing websites to be held liable for the act of removing third-party content they identify and acknowledge as objectionable would create a situation that Congress did no intend: the Act would protect them only if the abhorrent content was left in place.  All search engines necessarily take basic user information like location and language into account to ensure that different results will be provided to an Internet search of “football” from the U.S. than to a search of “football” from the U.K.  Without the protection to organize and monitor third-party content, the website defendants argue that the Internet would end up being like “the Truman Show versus a horror show.”

Narrowing the Act’s broad protection granted for a website’s organization of third-party content would force revision or removal of many, if not all, of the algorithms behind the 3.5 billion daily Internet searches and would drastically change personally tailored information Internet users are accustomed to receiving.  While the Supreme Court admitted to not being “the nine greatest experts on the Internet,” the decision to narrow the scope of protection under Section 230 is now theirs to make.  

Schenck Price Smith & King’s Technology and Social Media Practice Group works at the intersection of law and technology in today’s rapidly evolving global community, and we will report again as these matters work their way through the Courts. John P. Campbell is Co-Chair of the Practice Group and head of the Firm’s Technology Committee. Catherine O’Hern is an Associate at the firm after working in software marketing.  

For more information, contact John P. Cambell at JPC@spsk.com or 973-540-7322 and Catherine P. O'Hern at CPO@spsk.com or 973-540-7334.

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.