In November 2015, ISIS terrorists staged coordinated attacks across Paris, killing 130 people and injuring 400. Among the dead was Nohemi Gonzalez, a 23-year-old American studying abroad and the first in her large family to graduate from college -had a degree. This week, attorneys for her family and others face the Supreme Court to challenge a statute passed more than a quarter-century ago — a law that protects social media companies from what families perceive as internet companies’ role in the See aiding and abetting terrorist attacks.
How the court rulings could be a game changer for American law, society and social media platforms, which are among the most valuable companies in the world.
What the law says
Two cases, which will be heard over two days, will focus on Section 230 of the Communications Decency Act of 1996, which was passed by Congress when internet platforms were just getting started. In just 26 words, Section 230 distinguishes between interactive computer service providers and other information providers. While newspapers and broadcasters can be sued for defamation and other wrongful conduct, Section 230 states that websites are not publishers or speakers and cannot be sued for material appearing on those websites. Basically, the law treats web platforms like the telephone. And just like phone companies, sites that host speakers cannot be sued for what the speakers say or do.
At least the lower courts interpreted § 230 uniformly. They have stated that social media companies are immune under the law from being sued for civil damages for most material that appears on their platforms. This is despite the fact that the law also has a seemingly opposite goal: It encourages social media companies to remove obscene, indecent, excessively violent, harassing, or otherwise objectionable material.
The attack at the heart of the arguments
This week’s cases are trying to thread that needle. The Gonzalez family and the families of other terrorism victims are suing Google, Twitter, Facebook and other social media companies under the federal anti-terrorism statute, which specifically allows civil damages claims for aiding and abetting terrorism. The families claim that the companies have provided more than just platforms for communication. Rather, they claim that by recommending ISIS videos to prospects, they are trying to gain more viewers and increase their ad revenue.
Attorney Eric Schnapper, who represents terror victims against Google and Twitter, will tell the Supreme Court this week that social media companies wanted people to subscribe to their services when Section 230 went into effect, but today the economic model is different.
“Today most money is made from advertising, and social media companies make more money the longer you’re online,” he says, adding that one way to do this is through algorithms that other related materials recommend, to keep users online longer.
Moreover, he argues, the executives of modern social media companies know the dangers of what they are doing. In 2016, he says, they met with senior government officials who told them about the dangers of ISIS videos and how they were being used for recruitment, propaganda, fundraising and planning.
“The attorney general, the director of the FBI, the director of national intelligence and the then White House chief of staff… those government officials… told them exactly that,” he says.
Google’s attorney, Halimah DeLaine Prado, vehemently denies any such wrongdoing.
“We believe there is no place for extremist content on any of our products or platforms,” she says, noting that Google has invested “heavily in human verification” and “intelligent detection technology” to “ensure this happens.”
Prado acknowledges that social media companies today are nothing like the social media companies of 1996, when the interactive web was still in its infancy. But, she says, if there is to be a change in the law, it should be done by Congress, not the courts.
The choice in court
Daniel Weitzner, the founding director of the MIT Internet Policy Research Initiative, helped draft Section 230 and pushed it through in 1996.
“Congress had a really clear decision in mind,” he says. “Would the internet be like the broadcast media, which was pretty heavily regulated?” Or should it be like “the town square or the printing press”? Congress, he says, “chosen the town square and the print shop.” But, he adds, that approach is now in jeopardy: “The Supreme Court is really at a moment now where it could dramatically limit the diversity of speech that the internet enables.”
There are many “odd bedfellows” among the tech company allies in this week’s cases. Groups ranging from the conservative Chamber of Commerce to the libertarian ACLU have filed a staggering 48 briefs urging the court to maintain the status quo.
But the Biden administration has a narrower position. Colombian law professor Timothy Wu sums up the administration’s position: “It’s one thing to be more passive in presenting information, even organizing it, but when you cross the line and genuinely recommend content, you leave the protection of 230.”
In short, hyperlinking, grouping certain pieces of content together, sorting billions of dates for search engines, that’s fine, but actually recommending content that shows or encourages illegal behavior is another.
If the Supreme Court were to take that position, it would be very threatening to today’s economic model of social media companies. The tech industry says there’s no easy way to differentiate between collecting and recommending.
And it would likely mean that these companies would constantly defend their behavior in court. But filing a lawsuit and getting over the hurdle of presenting enough evidence to warrant a lawsuit are two different things. In addition, the Supreme Court has made this hurdle much more difficult to overcome. The second case the court is hearing this week, on Wednesday, addresses this very issue.
What makes this week’s cases so remarkable is that the Supreme Court has never dealt with Section 230. The fact that the judges have agreed to hear the cases shows that they have concerns. Judge Clarence Thomas has been outspoken about his view that the law should be interpreted narrowly, leaving little protection for social media companies. Judge Samuel Alito has indicated he may agree. But the views of the other judges are something of a black box.
The cases are Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh.
Jordan Jackson contributed to this story
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