The Supreme Court sided with Twitter and Google in a pair of recent opinions involving whether the tech giants did enough to remove terrorist-related content. Notably, the Court declined to clarify the limits of the much-debated Section 230 of the Communications Decency Act. The decisions, however, hinted that the defendants should not be liable for third-party content under Section 230. “Defendants’ mere creation of their media platforms is no more culpable than the creation of email, cell phones, or the internet generally,” Justice Clarence Thomas stated in the Twitter case.

Both cases were brought under §2333(d)(2) of the Anti-Terrorism Act. That section allows a plaintiff to assert liability against “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” The allegations in both were that the platforms, via their recommendation algorithms, had “knowingly allowed ISIS and its supporters to use their platforms . . . as tools for recruiting, fundraising, and spreading propaganda.”

Section 230 “immunizes providers of interactive computer services against liability arising from content created by third parties.” In the Google case, the Ninth Circuit had earlier held that the only claims not barred by Section 230 were “plaintiffs’ direct and secondary-liability claims based on allegations that Google approved ISIS videos for advertisements and then shared proceeds with ISIS through YouTube’s revenue sharing system.” The allegations in both cases, while directed at separate internet companies, were “materially identical” involving the same theory of liability. Id.

Seeking Game-Changing Liability for Recommended Content

In addition to their claims under the Anti-Terrorism act, the plaintiffs in the Google case asked the Court to rule on whether §230 applied to recommendation algorithms and argued that content even implicitly recommended by a platform to its users should be considered created by the platforms themselves rather than “created by third parties.” Given the widespread use of recommendation algorithms across sites (such as YouTube, Twitter, Facebook, Instagram, TikTok and more), the impact of a decision in the plaintiffs’ favor would have been wide and deep. To avoid liability, these platforms would have to overhaul delivery of content, rendering them less engaging and potentially decimating their stock value, which could ripple throughout the economy.

Justice Thomas delivered the Twitter opinion, representing a unanimous Court. Thomas did not address the question of §230 immunity directly, instead focusing on the aiding and abetting language in the Anti-Terrorism act. Thomas held that Twitter’s behavior was insufficient to constitute aiding and abetting criminal conduct and that plaintiffs failed to state a claim under §2333(d)(2). The Court held that the platform’s use of recommendation algorithms to deliver content to interested users was not enough to change the conduct from “passive nonfeasance” to “affirmative misconduct.”

As for the Google case, the Court remanded it to the 9th Circuit “to consider plaintiffs’ complaint in light of our decision in Twitter,” where it is very likely to meet the same fate. In the short Google unsigned Per Curiam opinion, the Court noted that it was declining to address the application of §230 altogether. Id.

A Cautious Court Hints at Supporting Section 230 Protection

Despite not officially addressing §230, Justice Thomas’ statement in Twitter that “recommendation algorithms are merely part of the infrastructure through which all the content on their platforms is filtered” implies that he views such algorithms as basic technical elements of online platforms. By equating algorithms to cell phones, email, and the general internet (all of which are covered by §230), he is implying that if the Court had addressed §230, it would not have agreed with the Google plaintiff’s arguments that recommendation algorithms negate §230’s protection.

This reluctance to address §230 head on is not totally surprising in light of comments made by various Justices during oral arguments. Justice Kagan in particular noted that the Justices are “not like the nine greatest experts on the Internet” and wondered that even if §230 was not meeting the needs of the modern internet “isn't that something for Congress to do, not the Court?” Justice Kavanaugh echoed her statements wondering “isn't it better for -- to keep it the way it is for us and Congress -- to put the burden on Congress to change that and they can consider the implications and make these predictive judgments?” 

At this point, if changes are going to come for §230, it is more likely that they will come from Congress rather than from the Court.