Whether a person wants Section 230 reform or is a Section 230 purist, all can agree that the U.S. Supreme Court's forthcoming decision in Gonzalez v. Google will set the tone for broader conversations on internet regulation. This case has the potential to rein in previous judicial misinterpretations of Section 230. Frankly, courts have made it virtually impossible to hold these tech companies accountable when they harm consumers. The reason? Their previous judicial decisions fail to link the so-called Section 230 immunities—which mostly benefit Big Tech—with the text of the statute itself.
The formal question presented to the Court in Gonzalez is: "Under what circumstances does the defense created by section 230(c)(1) apply to recommendations of third-party content?" Put simply, what does the text of Section 230(c)(1) actually say and do?
So, what does the statute say? Section 230 (c)(1) says that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Notice that there is no mention of the word "immunity" in the text at all. All the statute says is that we cannot treat an "interactive computer service" provider, in this case Google's YouTube, as the publisher or speaker of a third-party post, such as the content in a YouTube video. That's all.
Warped interpretations from various courts, starting with the 1997 Fourth Circuit case Zeran v. AOL, have radically read Section 230(c)(1) as providing tech companies with almost total immunity in civil litigation. Current interpretations of Section 230 support protecting tech companies when they host defamatory posts, violate various civil statutes, and even when they fail to adhere to their own user agreements. These immunities aren't written in the statute; they are-court created. Worse, there isn't a credible textual argument that would support these judicial interpretations. The Court in Gonzalez can rectify this.
To better understand what's at stake here, it's important to take a deeper dive into the facts of this particular case. This case comes to us from the Ninth Circuit. The family members of Nohemi Gonzalez, who tragically died during a terrorist attack in Paris by affiliates of ISIS, sued Google. They argued that Google knowingly provided material support to ISIS through its YouTube platform. The Ninth Circuit held that because Google was acting in a publisher capacity, it was entitled to Section 230 immunity. In other words, the Ninth Circuit denied the Gonzalez family their day in court to hold Google accountable under anti-terrorism legislation because Section 230 says so.
When deciding this, the Ninth Circuit provided no reasoning as to why the text supports giving Google this level of immunity. This is Immunity, mind you, that would not be afforded to The New York Times had it written about these videos, or a movie theater that had played these videos, or even individuals who recommend the same content to a friend. Google just gets immunity because, well, it's Google.
Unfortunately, the Ninth Circuit's decision here is the rule, not the exception, for Section 230 analysis. Courts follow a standard formula: because they're not sure what tech companies actually do and the case deals with a website or app's interaction with third-party content, they'll just grant sweeping immunity. Former Chief Judge Robert Katzmann of the Second Circuit admitted as much in his concurring opinion critiquing the majority in Force v. Facebook, when the court granted full immunity to Facebook under similar circumstances and claims as those seen in Gonzalez v. Google.
Frankly, the Supreme Court needs to root the application of Section 230(c)(1) in its text. One option, advanced by several senators, is that tech companies should only be protected from causes of action that target a speaker or publisher, such as defamation suits—as opposed to protecting them from enforcement actions via federal civil statutes. Another option would be to shield companies from liability for hosting and displaying content, but hold them responsible when they take actions beyond those of a traditional publisher, such as when they algorithmically push certain content to users.
Yet another possibility would be to allow this case to proceed and hold Google liable as a distributer of the illegal content, the same way mail couriers or newspaper stands would be. Neither the text nor the structure of Section 230 suggests that the Court can't do so. In that case, the Court should remand the case for the parties to argue whether Google knew, or should have known, that ISIS was using its platform as a recruiting tool.
But in any case, the statute does not support the current predominant reading of Section 230(c)(1), which shields tech companies from practically all civil liability when third-party content is at all implicated. That reading is detached from basic statutory construction.
If we're all equal under the law and our courts are the great equalizers of our democracy, then justice demands no less than a faithful reading of Section 230(c)(1).
Joel Thayer is president of the Digital Progress Institute and an attorney based in Washington, D.C. The Digital Progress Institute is a nonprofit seeking to bridge the policy divide between telecom and tech through bipartisan consensus.
The views expressed in this article are the writer's own.
Uncommon Knowledge
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