Section 230 Narrowing in the Future?

This past week, the Supreme Court heard oral arguments in Gonzalez v. Google.  The petitioners are a family that unsuccessfully sued Google for aiding and abetting terrorism when their 23-year-old daughter was tragically killed in an ISIS attack in Paris in 2015. Their lawsuit alleged that Google, which owns YouTube, violated the Antiterrorism Act’s ban by recommending ISIS videos to users through its algorithms, thereby aiding ISIS’s recruitment.

The 9th Circuit rejected the lawsuit, affirming its dismissal, on grounds that Section 230 of the Communications Decency Act (sometimes called "the law that created the internet") immunized Google's display of third-party content on the YouTube platform.  As framed in the argument, however, the petitioners distinguished between platforms merely displaying content created by others (entitled to immunity), and the platform algorithms that preferentially display popular and relevant information to users (not immune).  Google argued, however, that Section 230 immunizes platforms from lawsuits that seek to treat the platforms as publishers and that the publishing role includes the use of algorithms that merely organize information, which is a quintessential publishing task.  “Helping users find the proverbial needle in a haystack is an existential necessity on the Internet,” Google's lawyer argued. 

According to observers, the oral argument appeared to divide Justices across the ideological spectrum.  Thus, while there have been bipartisan efforts to amend Section 230, all of which have so far failed in Congress to advance, this case represents the biggest and most likely threat to the scope of Section 230 in recent years.

To be sure, if the Justices find in favor of the petitioners, the floodgates will open with litigation against platforms.  Perhaps this is why the case has attracted massive legal attention on both sides. A win for the petitioners could mean that any entity that makes third-party content available on the web may rapidly exit the business of sorting that content.  In that case, get ready to read product reviews for that can opener you have had your eye on sorted chronologically and not by most informative first.