(Bloomberg) -- The US Supreme Court will decide whether social media companies can be sued for hosting and recommending terrorist content, taking up two cases that challenge their liability protections.
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The cases mark the court’s first test of the broad immunity social media companies have enjoyed under a provision known as Section 230, part of the 1996 Communications Decency Act. Section 230 has become a target of conservatives, including former President Donald Trump, who say it lets left-leaning tech companies censor right-wing voices.
In one case, Alphabet Inc.’s Google is trying to defeat a suit involving Nohemi Gonzalez, a 23-year-old US citizen who was among 129 people killed in coordinated ISIS attacks in Paris in November 2015. Gonzalez’s family says Google’s YouTube service, through its algorithms, violated the Anti-Terrorism Act by recommending the terrorist group’s videos to other users.
Courts have interpreted Section 230 as immunizing computer services when they are engaged in activities traditionally performed by publishers, such as deciding whether to display or edit third-party content. But Gonzalez’s family says recommendations are a different matter.
“Whether Section 230 applies to these algorithm-generated recommendations is of enormous practical importance,” the family argued in the appeal. “Interactive computer services constantly direct such recommendations, in one form or another, at virtually every adult and child in the United States who uses social media.”
Google says YouTube at the time of the attack used a sidebar tool to queue up videos based on user inputs including browsing history. The company says the only alleged link between the Paris attacker and YouTube was that one attacker was an active user of the video-sharing service and once appeared in an ISIS propaganda video.
“This court should not lightly adopt a reading of section 230 that would threaten the basic organizational decisions of the modern internet,” Google argued.
Two lower courts, including the San Francisco-based 9th US Circuit Court of Appeals, sided with Google and said the lawsuit should be dismissed.
The Supreme Court also agreed to hear a related appeal by Twitter Inc. in a case stemming from a 2017 terrorist shooting in an Istanbul nightclub. In same ruling that absolved Google for the Paris attacks, the appeals court said Twitter, Google and Meta Platforms Inc.’s Facebook had to face claims that they played a role in the Istanbul attack by failing to identify and remove ISIS materials.
Twitter contends the appeals court improperly expanded the scope of the Anti-Terrorism Act by letting the suit go forward.
Calls on Congress
In May 2020, the Supreme Court declined to address a similar case, turning down an appeal on whether Section 230 protected Facebook from a lawsuit brought by US citizens injured in terror attacks in Israel who alleged the social network promoted posts by terrorist group Hamas.
The US Court of Appeals for the 2nd Circuit had ruled earlier that Section 230 barred the suit, but the chief judge of the court dissented, criticizing the extensive immunity courts have granted to internet companies and calling on Congress to amend the law.
In March, Justice Clarence Thomas urged the court to take up a case addressing “the proper scope of immunity” under the law in a concurrence. “Assuming Congress does not step in to clarify Section 230’s scope, we should do so in an appropriate case,” he wrote.
Trump had also set his sights on Section 230, directing his then Attorney General Bill Barr to send a proposal to Congress for how to impose new requirements on how the companies manage their content policies. Although several legislative proposal were floated, no changes were made to the measure.
Barr had highlighted the case as one where courts have granted “virtually limitless immunity” to shield online platforms. The Justice Department reviewed Section 230 as part of its investigation into major online platforms like Google and Facebook, and held a workshop on the issue.
The court will hear arguments early next year and rule by the end of its term in late June. The cases are Gonzalez v. Google, 21-1333 and Twitter v. Taamneh, 21-1496.
EXPLAINER: Twitter, Trump and How Online Speech Is Moderated
(Updates with timeframe for court to hear case in last paragraph. An earlier version corrected description of Thomas statement.)
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