People You Shouldn’t Know: The Impending Demise of Section 230 Immunity for Algorithmic Content and Friend Suggestions
Like all powerful creations of humanity, from the Greek Gods to atomic technology, the internet is something of a blessing and a curse. As a force for good and evil, for creation and for destruction, the internet has transformed the world in which we live in intricate and profound ways we can only begin to comprehend. Attempting to regulate something with such enormous potential influence was never going to be easy, but any regulatory regime would be preferable to the near-complete immunity from suit that the courts have provided websites under the aegis of Section 230 of the Communications Decency Act.[1] With the disfunction and abuse that have flourished under 230’s protections, it is a positive sign that the winds of change appear to be blowing with the Court’s granting of certiorari in the case of Gonzalez v. Google LLC.[2] So blowing, it is an opportune moment to speculate on the speed and direction in which the Court is likely to gust.
Gonzalez comes to the Court along with two companion cases, Taamneh v. Twitter and Clayborn v. Twitter. Decided by the Ninth Circuit in June 2021, each of the three Gonzalez cases rests on similar facts, and raises similar legal questions, to Force v. Facebook, Inc.[3] Specifically, all the cases were brought by plaintiffs seeking to hold social media platforms liable for aiding and abetting acts of international terrorism in violation of the Federal anti-terrorism laws, the Anti-Terrorism Act (“ATA”)[4] and the Justice Against Sponsors of Terrorism Act (“JASTA”).[5]
The cases raise three distinct questions: 1) whether section 230 immunizes social media platforms for algorithmically targeted content recommendations, 2) whether 230 immunizes platforms for making user-connection recommendations (“friend suggestions”) and 3) whether any non-immunized conduct alleged by plaintiffs sufficiently pleads a plausible claim, under the ATA and JASTA statutes, to survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss.
In Force, the majority ruled that Section 230 immunized defendants from both content recommendations and friend suggestions, and therefore did not address the plausibility of the alleged ATA and JASTA violations.[6] Judge Katzmann, in dissent, concurred as to a number of collateral claims, but dissented as to the core issue of Section 230 immunity for both content and friend suggestions.[7] Accordingly, he would have sent the case back to the district court to assess whether that alleged conduct was sufficient to state a plausible aiding and abetting claim under 12(b)(6).[8] Judge Katzmann makes a memorable analogy to the analog version of a friend suggestion, writing: “Suppose that you are a published author. One day, an acquaintance calls. ‘I’ve been reading over everything you’ve ever published,’ he informs you. ‘I’ve also been looking at everything you’ve ever said on the internet. I’ve done the same for this other author. You two have very similar interests; I think you’d get along.’ [He then puts you in touch with the other author.]”[9] He goes on to conclude “§ 230(c)(1) does not bar plaintiffs’ claims” [10] and that he “cannot join my colleagues’ decision to immunize Facebook’s friend- and content-suggestion algorithms from judicial scrutiny.”[11]
Judge Katzmann’s position in Force – that Section 230 should not automatically immunize internet firms from aiding and abetting claims on the basis of friend and content suggestions – has been very influential and appears poised to carry the day with the Supreme Court in Gonzalez. This appears to be the case for two reasons. First, all three of the Circuit Judges writing in Gonzalez cite Judge Katzmann in Force in declining to apply Section 230 immunity to at least some of the algorithmic recommendations of the social media companies.[12] Second, Justice Thomas, in statements to petitions for certiorari for several cases following Force,[13] has expressed the view that the lower courts have applied an overbroad reading of section 230. Specifically, Justice Thomas, in a statement respecting the denial of certiorari in Malwarebytes v. Enigma,[14] cites Judge Katzmann’s opinion in Force to argue that Section 230 should not be interpreted to grant internet companies immunity for situations where, as in Force, the plaintiff’s claims rest on “alleged product design flaws [and] the defendant’s own misconduct.”[15]
Even with this emerging consensus for narrowing the heretofore prevailing interpretation of Section 230, it is still possible the Court in Gonzalez will uphold the precedent for broader immunity established by the majority in Force. They could for example, argue that even if they agree with a narrower reading of the text of section 230, that stare decisis and the reliance interests of internet firms require them to uphold Force, and put the ball in Congress’ court to clarify the language. Yet, given the recent trend of the Court for flexing their judicial muscle,[16] it is highly likely that they will rule that Section 230, even in its current form, does not grant social media firms automatic immunity for misconduct related to making algorithmic content or friend suggestions.
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