Washington, D.C. (June 20, 2023) – On May 18, 2023, the United States Supreme Court issued a ruling in Gonzalez v. Google LLC (No. 21-1333), a Ninth Circuit case that the technology industry has followed closely, due to its potential implications for the immunity provided by Section 230 of the Communications Decency Act, 47 U.S.C. § 230, for platforms that host digital content provided by its users. Since its passage in 1996, Section 230 consistently has shielded platforms from liability for claims relating to user content on a variety of websites and more recently, applications. In its ruling, the Supreme Court declined to address Section 230, thereby providing a favorable outcome for the technology industry because the immunity provided by Section 230, as applied by courts throughout the country, will remain in place.
The Gonzalez Decision
Gonzalez involved three cases brought by family members of victims of the Islamic State of Iraq and Syria (ISIS) terrorist attacks that occurred in Paris, Istanbul, and San Bernardino. The plaintiffs sued Google, alleging that its YouTube platform derived advertising revenue from hosting ISIS recruitment videos, in violation of federal anti-terrorism statutes. The Ninth Circuit evaluated algorithmic technology that was first discussed in Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093 (9th Cir. 2019) and held that the plaintiffs' complaint was "devoid of any allegations that Google specifically targeted ISIS content or designed its website to encourage videos that further the terrorist group's mission." The court ultimately concluded that Google provided a neutral platform that did not specify or prompt the type of content to be submitted.
The U.S. Supreme Court subsequently granted certiorari, agreeing to evaluate whether Section 230 immunized media platforms such as Google when they make targeted algorithmically generated "recommendations" regarding content, such as links to other similar videos created by YouTube users. Because the plaintiffs sought review of the application of Section 230's immunity provision to YouTube's algorithms, a ruling by the Supreme Court addressing whether Section 230 barred the plaintiffs' claims could have had profound consequences for technology companies that host third-party content online or via smartphone applications.
The Twitter Decision
On the same day that it issued a ruling in Gonzalez v. Google LLC, the U.S. Supreme Court published its opinion in Twitter, Inc. v. Taamneh et al. (No. 21–1496), which involved claims filed by the heirs of a man who was killed in a 2017 ISIS attack in Istanbul, Turkey. In Twitter, the plaintiffs alleged that Google, Facebook, and Twitter knowingly allowed ISIS and its supporters to utilize their platforms and algorithms – which these plaintiffs also referred to as "recommendations" – as tools for recruiting, fundraising, and spreading propaganda.
The Supreme Court held that the defendants were not liable for aiding and abetting ISIS, reasoning that the defendants did not have an independent duty in tort requiring them to remove ISIS content or terminate the services of customers who were using their platforms for illicit ends. The Court also analogized ISIS's use of Twitter to other communications tools used by the public at large such as "cell phones, email, or the internet generally." In addition, the Court further held that algorithms that matched content on the platforms based on inputs provided by users were merely part of this communications infrastructure and that the defendants' algorithms did not constitute active, substantial assistance to terrorists as the Twitter plaintiffs alleged.
Gonzalez Takeaway
Notably, Lewis Brisbois Bisgaard & Smith represented the defendant in Dyroff and formulated the arguments supporting platform immunity under Section 230, which the Gonzalez plaintiffs challenged before the Supreme Court. In Gonzalez, the Supreme Court noted that "it has become clear that plaintiffs' complaint—independent of §230—states little if any claim for relief." In remanding the case to the Ninth Circuit, the Supreme Court directed it to consider the complaint in light of its decision in Twitter, and disposed of the Section 230 issue by stating that "[w]e therefore decline to address the application of § 230 to a complaint that appears to state little, if any plausible claim for relief."
The Court's ultimate ruling was consistent with several of the Justices' statements during oral argument indicating that they were hesitant to evaluate the immunity statute in connection with the complex and highly technical characteristics of digital platforms. For now, the Supreme Court appears generally to have accepted the arguments made by Google in Gonzalez, namely, that algorithms are necessary "to sort and list related videos that may interest viewers so that they do not confront a morass of billions of unsorted videos."
As a result of the Supreme Court's ruling in Gonzalez, technology companies can continue to reference Dyroff when seeking to dismiss lawsuits based on user content. Digital platform providers that publish, categorize, or organize user generated content – such as videos, messages, or statements – may also continue to take the position that algorithms are an integral part of the communications-related services that they provide to users and to the public. Although it remains to be seen whether the Supreme Court will agree to hear any other cases addressing the immunity provided by Section 230, we can be certain that platform providers will be monitoring any such cases that are litigated in circuit courts throughout the country.
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