The U.S. Supreme Court has agreed to hear a case questioning whether “safe harbors” granted to the operators of online platforms apply to the algorithmic process that allowed recruiting messages from terrorist group ISIS to be temporarily available on YouTube, abetting the 2015 ISIS attacks in Paris that caused the death of a member of the plaintiff’s family.
The complaint in Gonzalez v. Google alleges that YouTube’s process makes available and recommends sites to users that YouTube has not yet blocked for displaying harmful or illegal content, including specifically the ISIS propaganda that is the subject of the complaint.
The case will reportedly mark the first time the Supreme Court will review and consider the increasingly controversial Section 230 of the Communications Decency Act since holding most of the provisions of the CDA unconstitutional in the 1997 case of Reno v. ACLU. The CDA was an effort to keep the web free of illegal, objectionable, and “indecent” content by, in part, giving internet service providers a safe harbor from liability for taking down or refusing to post third-party content. Although most of the CDA was never enforced because of the ACLU decision, Section 230 remains enforceable law, based chiefly on its iteration of the traditional rights of publishers to make editorial decisions without fear of legal repercussion.
The same year as ACLU, the Fourth Circuit held in Zeran v. America Online, Inc. that Section 230 protects internet service providers from state-law claims for publishing third-party postings, just as traditional print media publishers were free from liability for deciding to print or not print material such as reporting, advertising, and opinion. In Zeran, Section 230 protected AOL from liability for defamatory statements posted on its service by an anonymous subscriber, since defamation is a state law claim.
In the Gonzalez case, the district court dismissed the plaintiffs’ claims that YouTube and its owner Google LLC violated the Anti-Terrorism Act, on grounds that Section 230 immunizes the online publishers against liability for their publishing decisions. The Ninth Circuit affirmed, precipitating plaintiffs’ petition maintaining that passive algorithms like YouTube’s algorithm are not analogous to the traditional decision-making of content publishers and should not protect YouTube from the consequences of making unlawful and harmful content available.
In considering the case, the Supreme Court may focus narrowly on the algorithm question; or it could more broadly consider the overall applicability of Section 230. For the past quarter of a century, many people and organizations have credited Section 230 with enabling the internet to grow and flourish. Such voices caution that modifying the courts’ interpretation of Section 230 could have serious chilling effects on the online commerce and communication to which the U.S. and the world have become accustomed.
Others, however, say that reconsideration of the reach of Section 230 is long overdue. Waiting on the sidelines is the pending Fourth Circuit case of Hepp v. Facebook, in which a misappropriated photograph of Philadelphia news anchor Karen Hepp found its way into numerous ads that appeared on Facebook and other online platforms, promoting such products as dating services and sexual performance enhancement. In that case, Plaintiff Hepp claims Facebook is liable for violating her publicity rights because Section 230 expressly excludes intellectual property claims. Many states, including Hepp’s home state, Pennsylvania, regard publicity rights as intellectual property, leading the Fourth Circuit to hold that Facebook is not shielded from Hepp’s claims. But complicating the situation, many other states regard the right of publicity as a personal right, not an intellectual property right, that is protected only by state laws governing privacy and defamation.
Despite the differences between their claims, Hepp and Gonzalez both maintain that under the current interpretation of Section 230 they, like Zeran in 1997, will have no redress for wrongs committed against them and perpetuated by the companies that control web platforms.
When the Court takes up Gonzalez and Section 230, the questions will be difficult and the stakes enormous.
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