Supreme Court finds terrorism cases against Twitter and Google flawed. What does this mean for the future of Big Tech accountability?
Ben Lennett, a technology policy researcher and author focused on understanding the impact of social media and digital platforms on democracy, is a contributing editor at Tech Policy Press.
Last week, the Supreme Court published decisions in Gonzalez v Google, LLCAnd Twitter, Inc. vs. Taamneh. Although much emphasis was placed on the Gonzalez case being the Supreme Court’s first Section 230 reckoning, its outcome was much more dependent on the judges’ interpretation of US anti-terrorism laws in the Taamneh case. As I wrote for Tech Policy Press In February, the lawsuits in both cases were based on the Justice Against Sponsors of Terrorism Act (JASTA), which allows victims to sue individuals and other organizations who knowingly support and facilitate an act of international terrorism.
Ultimately, that was what shaped the court’s decision. The failure of the plaintiffs in the Twitter and Google cases to properly assert a claim under JASTA allowed the court to avoid all of the important Section 230 questions. This was not surprising to us many observers, as neither complaint sought to demonstrate that Twitter or Google directly supported the terrorist attacks that led to the cases. Instead, plaintiffs argued that both companies — Google, which hosts and recommends ISIS content through YouTube and shares advertising revenue through its Adsense program, and Twitter, by hosting ISIS accounts and enabling general communications — support The terrorist enterprise of the IS.
According to the court’s summary in the Taamneh case, this was not enough:
In this case, it’s not enough to claim that the platforms here do more than just relay information from billions of people – most of whom use the platforms for interactions that used to be via email, on the phone or in public Areas involved an allegation that the defendants knowingly provided significant assistance, thereby aiding and abetting the actions of IS. A reverse conclusion would hold virtually any communications provider liable for any sort of wrongdoing simply because they knew the bad guys were using their services and failed to stop them. This would exceed the normal limits of tortious liability and remove accessory to blame.
Therefore, the judges declined to consider the application of Section 230 in the Gonzalez case and referred the case back to the Court of Appeals for review in light of its decision in Taamneh.
In doing so, the court left the status quo intact, with Section 230 continuing to provide platforms with broad liability protections, albeit with possible minor limitations. For example, the court did not refute this court of appeal It found that YouTube’s Adsense program was not protected by Section 230. However, it agreed that the complaint in the Gonzalez case “contains no allegation or other reason to consider Google’s revenue share as substantial support” for a specific act of terrorism or ISIS more generally.
For policymakers and others who are disappointed that the courts appear to have allowed major technology and other internet platforms to enable terrorist content and the organization of terrorist content, the rulings also make it clear that any obligations imposed on platforms should include broader measures related to to take action on user content and expressions will likely be required originate from the US Congress. Section 230, as currently interpreted, appears to protect platforms from harm related to hosting or promoting content, except in the narrowest cases, such as when a platform’s algorithm or content moderation grants “special treatment” to unlawful content or contributes significantly to its development.
In addition, the court notes in its Taamneh decision: “The plaintiffs’ complaint relies heavily on the defendants’ inaction, but the plaintiffs do not identify any duty that would oblige the defendants or other communications services to terminate customers Ultimately, this applies to most other unlawful content on social media and to what incentives or obligations these platforms may have to remove it or take further action seize.
Relying on the courts to impose some sort of dealer liability (like several). amici (as argued in the Gonzalez case), which would force platforms to take action if they were aware of illegal content, seems an unlikely strategy and could end up doing more harm than good, doing both tech companies and users creates an enormous amount of uncertainty. In contrast, at least in Europe codified its requirements and procedures for removing terrorist content online, including safeguards for freedom of expression.
Billing for social media platforms could still take place via legal challenges Florida And Texas Laws aimed at restricting the ability of social media companies to moderate certain content on their platforms. The Eleventh Circuit Court of Appeals found that the Florida law is “substantially likely” to violate First Amendment rights on social media platforms. In contrast, there is a separate Court of Appeal confirmed the texas law.
Both decisions were appealed to the Supreme Court, but even if the court decides to grant a review, it will do so in the next term. If the court accepts the cases, it becomes more difficult to avoid interpreting Section 230. Both laws question the scope of immunity Section 230(c)(2)which has historically allowed platforms to develop and enforce their terms of service and content moderation policies without incurring liability.
In fact, the conservative judges may have withheld their Section 230 arguments in the Gonzalez case, particularly for those cases that are far more relevant. The appeals court’s decision, which upheld Texas law, generously cited Judge Thomas’ decision accordance in a previous case with Twitter in which the judiciary questioned the influence of digital platforms on language and their ability to remove content. Conservative lawmakers also filed a lawsuit amicus short in the Gonzalez case, he asked the Supreme Court to use its decision to reconsider the scope of section 230(c)(2) protection for censorship of conservative views.
The Gonzalez case may not have succeeded in challenging Section 230, but the Florida and Texas cases could still weaken it significantly.